A Cruel Choice: Patients Forced to Decide Between Medical Marijuana and Employment

still remains unclear whether medical marijuana must be accommodated individuals receive medical marijuana pursuant to the authorization of the attorney general as part asserting that _medical_employee_patient_rights. when solely engaging in "the illegal use of drugs," and the ada does not limit an fires an employee for using illegal drugs that employee will no longer be a "qualified individual." together required the accommodation of the use of marijuana when it marijuana illegal. this puts those individuals, like jonathon, who use the ada prohibits employment discrimination on the basis of an receive protection under oregon's disability law.81 did not overrule the court of appeals' ruling that an employee who used 63. id. exaggerating his ailments to his physicians. since this act is outlawed by the csa, the court held glaucoma will claim that their major life activity of seeing is limited.149 additionally, the supreme court has interpreted the csa as rule, its use may be conduct resulting from the disability, and, therefore, 2009] a cruel choice 627 congress used. gonzales v. raich.215 then there is no "positive to determine whether medical marijuana is illegal for purposes of barber v. gonzales was decided. gonzales, 545 u.s. at 1; barber, 2005 wl 1607189. there appears to be a clear the dissent, the majority's argument that marijuana is different solely look: the federal government. perform the essential functions of the job, with or without reasonable 636 hofstra labor & employment law journal [vol. 26:619 individual and not for the employees as a whole.176 that the individual is claiming. for example, a plaintiff who has federal government is very unlikely,32 congress did not intend to abrogate the effect of a particular section of 206. no. 99 civ. 10006, 2000 wl 1742097 (s.d.n.y. nov. 28, 2000). not welcome here"). designed to strengthen an employer's ability to terminate an employee specifically a private employer's ability to terminate or refuse to hire even under medical supervision. id. however, a court may determine that "valid" only refers to 271. id. authorized by csa or other provisions of federal law, then the drug is some sort of examination or consultation by a licensed doctor."234 physicians applied for and received permission from the food and drug chronic or acute pain,143 protections.115 drug. the first sentence, labeled element a, is the use of a drug, the possession or distribution of illegal use of drugs `does not include the use of a drug taken under supervision by a licensed health furthermore, the united states supreme court decision in gonzales v. 105. ross, 174 p.3d at 214 (kennard, j., dissenting). enact legislation that allows the prescription of these substances. 15. mont. code ann. � 50-46-101 (west 2007). the cua, order issued by the attorney general. therefore, if there are people who distribute marijuana o'reilly auto. inc., 491 f.3d 726, 730 (8th cir. 2007); thompson v. henderson, 226 fed. app'x. order for the drug use not to be illegal it must be used under the the first sentence, and the "comma," followed by an "or," separating drug abuse, nat'l advisory council on drug abuse, jan. 1998 available at should be accommodated. marijuana during off-duty hours and not on the employer's premises did http://www.jointogether.org/news/headlines/inthenews/2007/questions-grow-about-medical.html. d. back to the text the court attempted to curiae supporting petitioners, at 20-24, ross v. ragingwire telecomms., inc., 174 p.3d 200 (cal. marijuana. specifically, since marijuana is used as a medication, an medicinal marijuana and palliative care: carving a liberty interest out of the glucksberg 26. press release, fda, inter-agency advisory regarding claims that smoked marijuana is an employee who is terminated due to his medical marijuana use construction would apply in other contexts. when the court phrases the the oregon barber v. gonzales, no. c-05-01-0173, 2005 wl 1607189 (e.d. wash. 2005). activities of learning or concentrating have been affected.153 physical or mental impairment that substantially limits one or more of introduction be expanding the scope of the csa if this were how the definition is commerce clause has the power to regulate controlled substances such as marijuana, however, the "disabled" according to the ada; 2) that he or she is qualified to authorized by the controlled substances act or other provisions of http://norml.org/index.cfm/content/facts/pdf_files/breif_blank/index.cfm?group_id=7161. administration ("fda") has stated that marijuana has no known medical is apparent that congress intended the definition to be understood such 83. s.b. 465, 2007 sen., reg. sess. (or. 2007). professionals to "prescribe" medical marijuana.232 130. id. substantially limited the major life activity of "employment."155 supervision by a licensed healthcare professional, or otherwise however, the concurring opinions of five have been determined in a few courts with regards to state law, no court 650 hofstra labor & employment law journal [vol. 26:619 csa protection with the 2008 amendments, which became effective january it see ada amendments act of 2008 (adaaa), pub. l. no. 110-335, � 2(b)(2), 122 stat. 3553, 24. � 812(c)(10). 17. n.m. stat. � 26-2b-1 (west 2008). according to the report, drugs taken under medical supervision during washburn v. columbia forest prods., inc., 134 p.3d 161, 164 (holding that defendant's termination thus, if the employee is no longer disabled due to the productiveness of employees on their particular jobsite.124 curry county, 451 f.3d 1078, 1084 (9th cir. 2006). it reads, "it shall be was to ensure that marijuana was treated similarly to other therefore, since group of plaintiffs who would be able to prove that their impairment rendered them "substantially use medical marijuana may be a "prescription."235 explicitly protecting employee rights.43 use under a doctor's supervision might be permitted under the ada."); 42 u.s.c. � 12111(6)(a). duty to provide a "reasonable accommodation" to employees that suffer 203. see generally mcdaniel v. miss. baptist med. ctr. 869 f. supp. 445 (s.d. miss. 1994); determine whether or not the employee is engaging in the illegal use of 230. see gonzales v. oregon, 546 u.s. 243 (2006). the supreme court held that despite the 137. id. � 12102(2)(b)-(c). 199. 545 u.s. 1 (2005). there will be a discussion in the element c section, infra, of health care professional, or other uses authorized by the controlled 2009] a cruel choice 623 language that would suggest it was addressing the issue of employee many seriously ill patients are left with only two options.35 after the oregon supreme court took the into an employment relationship . . . . indeed, it would be unprecedented . . . to hold that an substantively tested the issue of medical marijuana use and employment 293. see id. very difficult for jonathon and others who use medical marijuana to is that the employee may claim that the marijuana use the definition of "illegal use of drugs" in the ada is clearly in fact, two separate exceptions.266 the employer may also require that an employee did not meet the definition of "disabled."80 marijuana as a result of the employee's disability is engaging in the the americans with disabilities act. since it is, arguably, not illegal use of drugs, "lockstep" with federal law, and the plain language of the law did not definitely ease his nausea and help him sleep at night. he was about to which include, but are not limited to, "caring for oneself, performing manual tasks, seeing, hearing, 6. alaska stat. � 17.35.010 (west 2008); cal. health & safety code � jonathon of the possibility of using marijuana to alleviate his symptoms. proposition.230 however, governor schwarzenegger vetoed the bill.132 214. nat'l inst. on drug abuse, supra note 198. 223. 21 u.s.c. � 844(a) (2000) (emphasis added). c. uses [of drugs] authorized by the csa or other provisions of of metabolites, not the psychoactive parent compound thc. id. the metabolites can be detected included within the statute's definition of the term "discriminate."168 the topic of this note and offer their guidance. employer required random drug testing. 266. see id. work. the court left open for the trial court what a "reasonable accommodation" would be under the phrases, 264. h.r. rep. no. 101-485 at 32 (1990). 56. id. at 611. the test the employer provided could only detect whether the employee had drug in his urine.72 the main question for the court was c. california court believed that the definition of "disabled person" under oregon law of palliative care.242 55. id. a doctor could legally recommend marijuana and the patient would be 306. see mcdaniel, 869 f. supp. at 449 ("a question arises as to whether, in context of the or may not abrogate. therefore, under mcdaniel, in the context of a symptoms but face unemployment.36 discrimination. the plaintiff must demonstrate that: 1) he or she is & aaron solomon** 231. 21 u.s.c. � 829. "illegal use of a drug."272 held that a terminally ill patient did not have the fundamental right to first, the court noted that oregon disability law did not 95. ross, 174 p.3d at 203. separate law review article focused on medical marijuana and the right 255. id. definition of "illegal use of drugs."275 mitigate a disability, unless the use took place at the jobsite. the dissent 133. but see barber v. gonzales, no. cv-05-0173-efs, 2005 wl 1607189, at *2 (e.d. wash. 50. 104 p.3d 609 (or. ct. app. 2005). additionally, the dissent noted that though marijuana has 282. id. at 449. cancer,142 measures, such as medications and prosthetics, to be taken into account be applied to medical marijuana. however, it appears that the second manner, and the legislative history clarifies that drugs, including insomnia,144 204. 869 f. supp. 445 (1994). of a licensed healthcare professional, medical marijuana meets both ari lieberman* is unlawful under the 261. compare id., with 42 u.s.c. � 12111(6)(a). pub. l. no. 110-335, � 3(2)(a) (2008). drugs.174 and epilepsy.148 employee's use of marijuana at the workplace. however, many states' marijuana use at the jobsite,120 stand together."228 in this description, the phrase "such term does not include . . ." was lines.159 medical marijuana is a drug taken "under supervision of a licensed possession or distribution is unlawful under the csa then to be legal however, nida continues to supply marijuana to those patients who 260. h.r. rep. no. 101-558, at 56 (1990) (conf. rep.) (emphasis added). either because first, the court found that the plaintiff was not disabled and he was not regarded as the court attempted to determine whether this right is 145. see generally mondaine v. am. drug stores, inc., 408 f. supp. 2d 1169, 1200 (d. kan. that the termination was in violation of the ada because they were class of jobs and not just a single job. id. at 1107. even though the supervisor said, "i would not all three federal district courts that have considered the definition and other public health practitioners,212 138. see 29 c.f.r. � 1630.2(h) (1998). an "impairment" is defined as the following: 169. see, e.g., cal. health & safety code � 11362.785(a); or. rev. stat. � 475.340(2) authorized its use.251 for the employee to succeed with such a theory, they must be limited marijuana would have to be accommodated when used in order to "under supervision of a licensed healthcare professional" as long as it the feha includes, "adjustment or modification of examinations, the use of a drug taken under supervision of a licensed healthcare professional. id. finally, the decision in gonzales v. raich, 545 u.s. 1 (2005). id. marijuana pursuant to the compassionate use act3 this demonstrates the intent of 16. nev. rev. stat. � 453a.120 (west 2008). because ross' claim is brought under the feha, not under the cua directly. thus, the controlled substances act."279 108. ross, 174 p.3d at 204-05; see also amar, supra note 107. 224. id. and it was used pursuant to state law.105 employee abstain from marijuana use, this claim may prove to be required employers to accommodate an employee who used marijuana various states continue to pass statutes and ordinances that allow the 120. cal. health & safety code � 11362.785(a) (west 2005). question shouldn't be whether the cua "speaks to" employment law (as the court other uses [of drugs] 97. see generally id. at 204-06. interpreted as authorizing the use of medical marijuana. these washburn's doctor recommended that he use marijuana as part on the other hand, "conduct resulting from a disability is again, substituting the elements for the phrases and the definition is as a "right to make life-shaping decision on a physician's advice to use is the disability.152 place of employment or during the hours of employment . . . ."). guidance throughout the publication process. many thanks to all of the members of the hofstra 20. r.i. gen. laws � 21-28.6-4(a) (west 2008). testing abuse, available at http://norml.org/index.cfm?group_id=4936. ii. medical marijuana and the americans with disabilities act sclerosis,146 265. id. (emphasis added). mitigating measures had to be considered when assessing whether an individual had a disability). licensed healthcare passes both california houses (aug. 20, 2008), available at under the ada the drug must be used under the supervision of a the court jonathon asked if that was legal. the doctor indicated that in their state possessed marijuana in the workplace by having trace elements of the 2009] a cruel choice 637 treatment in the united states," and a "lack of accepted safety for use of discrimination] laws, employer[s] still may have to consider accommodating an employee whose the medical marijuana context, then the recommendation of a doctor to employees to abstain from marijuana use. to enforce these policies, symptoms, his doctor prescribed new medication. jonathon complained treatment . . . . these persons would fall under the same category as thus, 146. see berry v. t-mobile usa, inc., 490 f.3d 1211, 1215 (10th cir. 2007). detecting cannabis impairment or recent cannabis use. the procedure can only detect the presence finally, section iii will examine whether a patient's use of medicinal made at least one exception to the first sentence of the definition. five state legislators who 2007). 273. americans with disabilities act of 1989: hearings on s.933 before the comm. on labor began enacting medical marijuana laws,274 marijuana is obtained "pursuant to a valid prescription," then the 281. id. at 448. 176. enforcement guidance: reasonable accommodation & undue hardship under the impairment caused their major life activity of eating to be limited.150 for their use of medical marijuana.84 create at least one exception to element a.262 288. see id. have stated differently, health professional," without an inquiry of whether the plaintiff abused 75. washburn, 104 p.3d at 614. k.k. duvivier, state ballot initiatives in the federal preemption equation: a medical marijuana medical called the opinion "less than satisfying" and noted, should be made in the context of a proper doctor-patient relationship and 626 hofstra labor & employment law journal [vol. 26:619 employee can be fired for testing positive for off-the-job, doctor-suggested medical use of marijuana use; it was recommended by his doctor to treat chronic pain 12. colo. rev. stat. ann. � 18-14-1 (west 2001). from working a "broad class of jobs."156 own, is an exception from element a, but it also states the intended been considered to be "impairments" by the courts: hiv infection,141 43. stopthedrugwar.org, supra note 8; see also r.i. gen. laws � 21-28.6-4(b) (west 2008). senate hearing, the deputy attorney general john p. mackey noted that their disability) not to disclose their medical condition . . . ."269 co.289 supports an argument that the phrase does not include the medical use of medical condition has led to a recommendation of medical marijuana use."). the same house report indicates that when a drug is taken "under focusing on element a, the use of medical marijuana appears to be "[the bill] is merely an affirmation of the intent of the voters and the the court noted that the cua was devoid of any employee for use of medical marijuana when used at home and where it public policy issue. id. at 210. court was concerned with whether washburn was presently disabled, it should have considered the language of the second sentence, containing element b and element c, required that a drug taken however, several other states to succeed with a claim solely for medical purposes? if the medical use of marijuana were not shall be construed to "[r]equire an employer to [a]llow any person who is impaired by the use of 102. id. at 1222-23 (emphasis added); ross, 174 p.3d at 204. work early and even missing full days of work. 15, 26 (reporting that opioids can have very debilitating side effects including nausea, drowsiness broadcasting company206 http://www.nida.nih.gov/about/organization/nacda/marijuanastatement.html. a group of seven theory that the employer mistakenly perceived that he had a disability, and claimed that the definition will appear as: to a physician's or other health care professional's supervision, if medical marijuana to preserve bodily integrity, avoid intolerable pain, then the employer may have to accommodate such 624 hofstra labor & employment law journal [vol. 26:619 does not include the use of a drug taken under supervision of a licensed conclusion 61. id.; see generally sutton v. united air lines, inc., 527 u.s. 471, 475 (1999) (holding 98. see id. at 205-06. methods for substances in schedules ii through v, but is silent for one may argue that there could be no "valid prescription" because schedule i substances are not safe ("cua") even when were receiving the drug at the time of the termination.219 marijuanaaddiction.info, marijuana side effects, http://www.marijuana-addiction.info/side- almost half of those that use marijuana for medical purposes live in marijuana for medical purposes, in an interesting predicament. while now, employees that element b and element c are two separate and independent 100. id. at 205. 903 allowed states to adopt laws authorizing the practice. id. pursuant to federal law. id. at 1. only a few states that allow the medical use of marijuana have the court stated, "[a]lthough that day has not yet dawned, medical marijuana, the court made no substantive findings on the issue of whether the employer authorized by federal law; however, for the present medical marijuana (cal. 2006), supra note 7, at 9-10. the court ruled that the drug was taken "under supervision" when it was prescribed, even though potential that if an employee is actually disabled and terminated for his medication was experimental, as long as the drug was taken under the the term "illegal use of drugs" means a. such term does not include congress that the use of a drug, experimental or otherwise, taken under ross gave 16, 2007, available at http://findarticles.com/p/articles/mi_qn4184/is_20070316/ai_n18738226. even for medical purposes. however, there is an argument, not several days to several weeks after the use of marijuana, and cannot test whether the employee is uncertainty. employers are living in a dangerous situation." id. legislative history makes clear that when a worker's marijuana use is the question of an employee's use of medical marijuana was employee's medical use of marijuana.110 2009] a cruel choice 647 require mitigating measures to be taken into account.65 we conclude that the question of plaintiff's status as a disabled person is dispositive in this case, we the oregon medical marijuana law provided that an employer was not the court of appeals reversed the trial court's findings on both 116. id. at 209-16. the two justices dissented to the feha claim, but concurred with the imperative to determine whether an employee who utilizes medical however, according to toscano v. national broadcasting the bill passed the senate by a vote of 23 to 5,87 131. press release, americans for safe access, medical marijuana employment rights bill recent cannabis use by detecting the presence of thc, not the metabolites. id. both blood and rule that disabled employees must be reasonably accommodated under under the commerce clause to regulate interstate manufacture and possession of marijuana, even if epilepsy, aids, and mental illness, take a variety of drugs, including conjunction with [section] 843(a) [of the csa]."284 under supervision of a licensed health care professional it is not an montana,15 52. id. 36. id. have used marijuana in the previous two to six weeks.178 148. see taylor v. usf-red star exp., inc., 212 fed. app'x. 101, 106 (3d cir. 2006). 165. s. 3406 supra note 157, � 3(e)(i). therefore, according to the cua amendment, unlawful for any person . . . to possess a controlled substance unless ada did not include the use of medical marijuana.299 the 10. see bill zimmerman & dave fratello, medical pot laws don't blow smoke, cannabis under supervision by a 141. see bragdon v. abbot, 524 u.s. 624, 625 (1997). liberty mut. ins. co., 433 f.3d 100, 104 (1st cir. 2005); burke v. niagara mohawk power corp., 181. collings v. longview fibre co., 63 f.3d 828, 832 (9th cir. 1995). these courts indicated that the drug must have been taken in the physical not deny that employers must make accommodations for other d. termination for misconduct or discrimination against disability claim under the ada. after all, the supreme court held in gonzales v. this clearly places medical marijuana in a state of limbo. while question, it asks whether the second sentence takes precedence over the "deeply rooted in this nation's history and tradition" and "implicit in the purpose of element b. the report states: the court construed the cua to apply narrowly, in order he requested that his employer (1989). 646 hofstra labor & employment law journal [vol. 26:619 60. see id. at 612. ross, on 279. h.r. rep. no. 101-485 pt. 3, at 32 (1990). expressly authorized by federal law.214 demonstrate he suffered a physical impmairment). the ada does urinalysis, the drug test commonly used by employers, cannot accurately important turn to the legislative history for guidance.259 this language is understood as an express exception to the general rule of subterfuge."285 on employment in the wild, wild west, a.b.a. at 6 (2000) ("however, the ada also states that the to avoid severe physical suffering, and to exercise medical autonomy 154. 104 p.3d 609 (or. ct. app. 2005). plaintiff's assertion might be correct. however, absent any cited the court began by district court came up with the definition of the term in a different asked), but rather whether the cua's existence has an effect on employment law, states is beyond the power of the federal government."); whalen v. roe, 429 u.s. 589, 597, 603 n. if the person has a record states would be authorized through section 903 to enact laws allowing of drugs'] takes precedence over the first sentence . . . acting in for the purposes of the americans with disabilities act? the plaintiff of thirteen states. however, the federal government still deems all use of ambiguous in its application to the medical use of marijuana.256 274. see cal. health & safety code � 11362.5 (west 1996). the hearing took place in 186. id. at 832. the ada's definition of "illegal use of drugs" provides: 38. id. 242. hyatt, supra note 238 at 1348. 245. id. at 736-92; hyatt, supra note 238, at 1354. "medical use of marijuana" as "the production, possession, delivery, or (attorney nancy n. delogu noted the supreme court's decision in raich "permits employers to or otherwise discriminated against for using marijuana from bringing a recommend the medical use of marijuana], a formal recommendation in compliance with the professional standards of the community."213 if the rhode island is currently the only state that specifically protects the stating that marijuana is not afforded the same status as other or other provisions of federal law.260 successful. assumed that medical marijuana was a drug taken 226. 21 u.s.c. � 829. construction that now read, "the determination of whether [a person is physicians who advise their patients on the use of medical 2(b)(2), 122 stat. at 3554. 125. ross, 174 p.3d at 215; see also amici curiae brief of american pain foundation, supra a. meaning, as a general rule, if a drug's distribution or possession is alleging that the employer failed to reasonably accommodate his and insomnia. when the original medication did not quell his in california the issue of medical marijuana and employment was need not accommodate the use medical use of marijuana at the workplace only including the 44. stopthedrugwar.org, supra note 8. the supreme court in washington v. glucksberg243 since washburn did not possess the drug in the workplace, then use medical marijuana for various illnesses and ailments including disabilities act ("ada")39 it will be left to the courts to determine how this definition should 193. see ed reeves, clarence belnavis & stoel rives, the impact of medical marijuana laws 1. ambiguity? the opinion clearly mistakes an "and" for the "or" which of marijuana "regardless of where the use occurs."83 298. the motion for reconsideration and motion for distinction from gonzales v. raich was allowed.270 (o'connor, j., dissenting). the note congress responded to the supreme court's tapering of the ada's medical marijuana meets element b, but it does not meet element c. in 1992, the program ended and the federal right.254 228. 21 u.s.c. � 903. 188. 42 u.s.c. � 12114(a). 74. � 475.340(2). ("csa"). under the csa, drugs in this category have jr., a professor of law at david clarke school of law at the university of the district of columbia any other treatment a doctor may recommend or prescribe. did not have to be analyzed in "lockstep" with the americans with however, under the feha, employers have the that the marijuana use was legal under state law.96 244. id. at 728. keep their job, but suffer needlessly from their debilitating illness.37 654 hofstra labor & employment law journal [vol. 26:619 "such term does not include" and "and does not mean," both seem to 652 hofstra labor & employment law journal [vol. 26:619 next, element b is determined by whether medical marijuana is a 238. see note, last resorts and fundamental rights: the substantive due process considered part of the disability, rather than a separate basis for the csa barber (oct. 25, 2004) (on file with author). an employee for using medical marijuana may attempt to defend such 628 hofstra labor & employment law journal [vol. 26:619 of medicine is in the province of the states.229 states created exceptions for using the drug when a medical professional in some way, or that the employer has offered another reasonable and 192. see generally gonzales, 545 u.s. 1. the supreme court held congress has the authority account when assessing whether a person's impairment substantially 115. id. since the marijuana alleviated the plaintiff's muscle spasms, he was no longer disabled and, thus, no 128. id. concept of ordered liberty."249 individual with a disability because of the disability of such individual . . . ."). there is a handful of individuals who use medical marijuana that is 195. id. the definition of "illegal use of drugs" in the ada exudes three distinct uses of a trace amounts of marijuana in one's system and can provide a positive simply a widely held belief that tends to further the general public: it is a bedrock protection . . . ." employers may be concerned that they may have to accommodate an suggest that there are two exceptions to the first proposition, but the 47. � 21-28.6-4(b). 29. employer refused to make the accommodation and subsequently employers may require employees pass a pre-employment drug test federal law.307 been necessary to decide whether the second sentence abrogates the first 89. id. framework, 33 fordham urb. l.j. 1345 (2006). 164. see americans with disabilities act now applies to more people, supra note 163; s. 3406 special sense organs, respiratory (including speech organs), cardiovascular, reproductive, this test would have the ability to determine if the claim that they used marijuana for medical purposes, were terminated 90. 174 p.3d 200 (cal. 2008). explicitly states that an employer cannot discriminate against individuals supervision of a licensed healthcare professional" it is not an "illegal use not limit an employer's ability to perform drug tests in order to what "illegal use of drugs" are not, and they are not "drugs taken under 106. see id. 81. washburn, 134 p.3d at 166. 37. id. element a states that if the drug's distribution or possession is unlawful is to use medical marijuana, may have a substantive due process claim. marijuana, even if the adverse employment action was in response to the 3. the fourteenth amendment--substantive due process however, the mcdaniel interpretation may be limited to the context of a the california supreme court relied heavily on case law that gave a disability is defined as "a entity acts on the basis of such use. id. an employee must be a "qualified individual with a medical marijuana which he presently utilized, rather then prescription medication that he used prior 85. libby tucker, oregon senate passes medical marijuana bill, daily j. of com., mar. and held that the employer could terminate them because they were that the drugs were illegal. in order for the court to reason this, the court must have determined that 155. id. at 612 n.3. the term "illegal use of drugs" means a. such term does not include not affect job performance, a disabled individual using medical the individual was taking drugs "under supervision of a licensed healthcare professional," or else it supervised drug use must be an authorized drug use under the controlled substances act or other may be in violation of their workplace drug policy. obtaining drugs by exaggerating his condition to his physician.286 254. id. by a licensed health care professional," to mean the drug's use was the csa rendered illegal the plaintiff's actions of u.s.c. � 126111(6)(a), held that the second sentence of the definition of "illegal use of drugs" did 51. id. at 610. individual with a disability" and thus receive protection under the ada. http://newsblogs.chicagotribune.com/triage/2009/01/american-disabi.html#more (robert burgdorf a medicine, remedy, or drug for a real patient who actually needs it after supervision" was the latter. in mcdaniel v. mississippi baptist medical for recreational on-the-job use of marijuana.185 user. questions grow about medical marijuana, workplace, join together, apr. 20, 2007, http://www.zimbio.com/governor+arnold+schwarzenegger+/articles/122/governor+schwarzenegg (1) any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss 215. see generally 545 u.s. 1 (2005) (holding that the federal government through the the workplace drug 139. see amici curiae brief of american pain foundation, supra note 7, at 12. the house report not only clarifies that element b, standing on its 8. stopthedrugwar.org, medical marijuana and the right to work: under attack in id. � 1630.2(h)(1)-(2). the ada, as amended contains a list of possible "major life activities" separate exceptions to element a. patients who use medical marijuana as a last resort.240 concentrating, thinking, communicating and working." ada amendments act of 2008 (adaaa), policy in loder stated that if the drug test revealed "the presence of stereo equipment outlet store. his boss is understanding of his illness concurring & dissenting). interpreted the second sentence to contain only one exception, and in "should a physician choose [to mississippi baptist medical ctr.,280 arguments that may have been left open by the supreme court decision. 3553 (2008); sutton v. united air lines, inc, 527 u.s. 471, 476-77 (1999). the 2008 amendments 453a.170 (west 2008); n.m. stat. � 26-2b-1 (west 2008); or. rev. stat. � 475.300 (west discrimination law. if this text were read on its own, as long as 166. american with disabilities act now applies to more people, supra note 163. needed to accommodate the use of medical marijuana in any way. id. at 1095, 1099. see also which is unlawful under the csa), standing on its own, would result in 638 hofstra labor & employment law journal [vol. 26:619 111. cal. health & safety code � 11362.785(a) (west 2005) ("nothing in this article shall though the current workplace.128 124. id. at 215; see also amici curiae brief of american pain foundation, supra note 7, at 14- the food and drug provide reasonable accommodations in the workplace.278 620 hofstra labor & employment law journal [vol. 26:619 how the employee's drug use will damage their business interests.126 in 2006, the supreme understood as a ban on the prescription of schedule i substances, but a 283. id. at 449-50. 292. id. substances act24 251. id. at 865 (citing leary v. united states 395 u.s. 6, 16-17 (1969)). individual who uses marijuana to treat an impairment may no longer be washington,18 washburn brought an action [does] not wish to penalize those persons who, in limited cases, are use of a drug that is authorized by the csa or other provisions of federal determine current impairment, but in some cases can determine if they hypothetically disabled.79 the provision differently, and two of them held that it had to be abusing a prescribed drug outside the presence of a licensed health care he did not use the drug in the workplace, and the provision stating that ensuring a safe workplace environment, and may still enforce a drug policy. id. however, the court did not analyze the fact that there is a general if the medical use of marijuana is not an 109. cal. gov't code � 12940(m) (west 2005). "under supervision of a licensed healthcare professional" had to be a drug whose was otherwise 156. id. at 612; see also dvorak, 432 f. supp. 2d 1090. the employee was fired from a safety 2009] a cruel choice 629 the csa declares the drug illegal even in a state that allows the medical of "illegal use of drugs" have implied that the meaning of "under 33. amici curiae brief of american pain foundation, supra note 7, at 20-24. the laws of the states that have legalized the use of medical marijuana). judgment was improvidently granted.66 the term `illegal use of drugs' means: 160. id. at 482. the bill would still 299. id. 289. no. 99 civ. 1006, 2000 wl 1742097 (s.d.n.y. nov. 28, 2000). 27. 545 u.s. 1 (2005). and preserve life, when all other prescribed medications and remedies the national institute on drug abuse ("nida") is the sole source under the csa, then the use of the drug is illegal.257 in total, thirteen states allow doctors to the cua, gary ross' physician recommended he use marijuana to treat house reports offer some direction on how to interpret the statute. one of drugs." the report discusses the right of employees to not disclose following conditions, for which marijuana may provide relief,140 violation of public policy.95 heels of gonzales v. raich,296 drugs." id. iii. is the medical use of marijuana an "illegal use of drugs" substances act. the sentence reads "[the term illegal use of drugs] terminated him for failing the drug test.57 only three united states district courts have tackled the ada's 262. see h.r. rep. no. 101-558; see also 42 u.s.c. � 12111(6)(a). [csa]."305 123. id. at 214. employees for their use of drugs. used marijuana in the previous two to three weeks and could not detect whether the employee was 136. 42 u.s.c. � 12102(2)(a). this particular case did not present sufficient evidence to satisfy the burden of proof). at first glance, this appears to ban an employee who is terminated 634 hofstra labor & employment law journal [vol. 26:619 rely upon the fact that marijuana use is illegal under federal law . . . and to deny employment to marijuana is categorized as a schedule i drug in the controlled marijuana may be used to relieve the symptoms of many the court believed whether, by having trace elements of marijuana in his system at work, night.52 drugs"] requires the use of the drug taken under the supervision of a 209. barber v. gonzales, no. c-05-0173, 2005 wl 1607189 (e.d. wash. 2005). 2009] a cruel choice 649 awadallah, 349 f.3d 42, 53-55 (2d cir. 2003) (if a statute's language is ambiguous, the court may the possession 185. id. at 831. marijuana, as necessary for the exclusive benefit of a person to mitigate 284. id.; 21 u.s.c. � 843(a) (2006). 13. haw. rev. stat. � 329-122 (west 2007). the house committee stated that they, "[do] not intend to affect the impairments138 sensitive manual job after a doctor told the employer that the medication the employee was using [t]he use of drugs, the possession or distribution of which is unlawful considered the question of how the laws will affect employment, 134. see u.s. equal employment opportunity commission, enforcement guidance absenteeism, diminished productivity, greater health costs, increased of drugs" used in this report clarifies that element b and element c are, substances act or other provisions of federal law." accordingly, the one of the examples of a reasonable accommodation in the ada is 49. id. jonathon considered this option. the doctor informed him it could referred to those select few in the federal compassionate use program.). vitielo, supra note 273, at determined that an substituted for the phrase "and does not mean . . . ."261 240. note, supra note 238 at 1990-91. even though this statement was made seven years before states use of drugs"] it in no way intended to abrogate the effect of [section] by using the phrase "it also does not include . . ." to determine if he was currently under the influence of marijuana in lieu of extended to other contexts, and the second sentence never abrogates those who are users of legal drugs.273 the employees claimed activity of sleeping is adversely affected.151 vermont,21 text accompanying notes 277-86 (discussing barber in more detail). dvorak is not dispositive 189. 42 u.s.c. � 12114(a). has a disability, and not the medication that individual takes. thus, if 40. 42 u.s.c. � 12114(a) (2006). 122. ross, 174 p.3d at 209-10. http://www.littler.com/presspublications/lists/press%20releases/disprelease.aspx?id=104. grounds: washburn was not disabled as a matter of law, and the difficulty or expense . . ." and many of the factors to be considered deal with the expense of the the bill was medical marijuana and employment 1989, while california did not pass the cua until 1996. their misconduct, regardless of whether or not the employee has a necessary reasonable accommodation.76 their best judgment in "accordance with their training, experience and 77. washburn v. columbia forest prod. inc., 134 p.3d 161, 162 (or. 2006). in rhode island are the most protected in the nation. they receive has substantively questioned whether federal law, namely the ada, rights and privileges.99 232. 21 u.s.c. � 903. medical marijuana laws provide that an employer is not required to provided that employers had the right to test the court stated, "[t]hus, a question arises as to whether, in the context the plaintiff was using various an "illegal use of a drug" for purposes of the americans with disabilities federal law glaucoma, multiple sclerosis, insomnia, epilepsy, and hepatitis c.7 id. at 8; see also pettus v. cole, 57 cal. rptr. 2d 46, 84-85 (cal. ct. app. 1996) (["n]o law or 170. see 42 u.s.c. � 12112(b)(5)(a). 142 fed. app'x. 527, 528 (2d cir. 2005); mackenzie v. denver, 414 f.3d 1266, 1274 (10th cir. however, currently it is not a drug 18. wash. rev. code � 69.51a.005 (west 2009). noted that the phrase "substantially limits a major life activity," was in because of this, medical marijuana is in an interesting the other hand, did have a legitimate medical explanation for his or order, from a practitioner, while acting in the course of his part of a course of treatment, then it will be considered legal drug use.308 thus, using the two descriptions of the definition of 200. 532 u.s. 483, 494 and n. 7 (2001). the csa prohibits the manufacture and distribution 843(a)(3)."). http://www.americansforsafeaccess.org/article.php?id=5466. further, the court found that healthcare professionals to recommend the use of marijuana to their recommend marijuana to their patients,6 187. id. at 833. instead on the employee's workplace misconduct. jonathon's employer discriminates or terminates him, he may be able to 250. id. at 864-65. activities are more obvious than others, depending on the impairment clinical insight" as they do when recommending other controlled washburn, was hired as a millwright for columbia forest products, with possessed and distributed solely for medical purposes. therefore, present case, the second sentence of 42 u.s.c. � 12111(6) takes precedence over the first sentence to reiterate, the mcdaniel interpretation says that element b and for drug use "[i]n light of the well-documented problems that are federal authorization of medical marijuana.238 the plaintiff, robert and unable to state a claim under the act.62 possible reading of the silence is a reservation of the states' right to an employee or applicant who is currently engaging in the illegal use of drugs, when the covered 286. see id. marijuana for treatment may find solace in the last place they would but see ada amendments act of 2008, s. 3406, 110th cong. � 2(b)(1) (2008). the ada was administer marijuana in the workplace, the issue became whether he medical marijuana is a drug of which possession or distribution is healthcare professional." therefore, neither element b (the "under authorized by a licensed health care professional.205 the csa. id. was pursuant to a legitimate medical purpose, and not associated with act, the drug's status would only enable an employee to be "a qualified 1, 2009.164 the bill was approved by the currently impaired or affected by the drug on the job. id. companies may have vital interests in professional or other uses authorized by the controlled substances act 2009] a cruel choice 643 according to a brief submitted 259. see, e.g., u.s. v. pub. util. comm'n of cal., 345 u.s. 295, 315-16 (1953); u.s. v. individual's disability.167 of medical marijuana is lawful. 14. me. rev. stat. ann. tit. 22, � 2383-b (west 2004). history of marijuana use, both medical and otherwise.250 disability needed to be assessed presently with consideration given to bleeding). in conjunction with element a. under this narrow reading of mcdaniel, medical marijuana at the jobsite,111 "surely this cruel choice is not what california voters intended when federal law."265 an employee, who used marijuana even for medical purposes, schedule i substances, such as marijuana.227 healthcare professional."258 however, if this construction is 297. barber, 2005 wl 1607189, at *1. a island patient advocacy coalition said that employee protection was included because "we went to licensed health care professional be consistent with the controlled administration of marijuana, or paraphernalia used to administer ada.162 did washburn use marijuana in the workplace?70 however, the ada's definition of the phrase "illegal use of drugs" 220. id. 114. id. at 208. 2. 174 p.3d 200 (cal. 2008). publication. additionally, i would like to thank ashleigh garvey, thomas moyher, edward recommended medical marijuana was not immune from termination by a court ruling on medical marijuana to benefit employers and employees, according to littler drug at home during off-duty hours and having trace elements of the drug in the employee's urine at end disability discrimination, and, if need be, require employers to performance.4 the court rules that when congress enacted [the definition of "illegal whether the phrase refers to a drug taken under direct supervision of a 157. see ada amendments act of 2008, s. 3406, 110th cong. � 2(a)(4) (2008) (enacted). supervision of a health care professional, or other uses authorized by the 276. see id. some other sleep impairment, then he may claim that his major life 211. amici curiae brief of american pain foundation, ross v. ragingwire, no. c043392, allowed the federal government to prohibit the use of medical marijuana even in states that employer believed that the major life activity of working was substantially limited. id. at 1099. definition of "illegal use of drugs." all three of these courts interpreted a doctor's recommendation, the drug remains illegal under federal law.23 expressly overruled the decision from sutton. s. 3406, 110th cong. � 2(b)(1) (2008). controlled substance after the drug was consumed and entered the bodily that under 112. ross, 174 p.3d at 207. professional," however the court construed the definition to mean the drug use must also be 258. id. subsequently, ross brought charges against approximately 97% of the decisions.158 who attempts to raise a claim under the ada. this case, decided on the the course of treatment are taken legally. situation. while the use of the drug will violate a workplace conduct this note has discussed an argument that could lead a court to marijuana act passes, michigan medical marijuana patients, available at the major life activities of such individual."136 64. id. at 616. 253. raich, 500 f.3d at 866. besides the select group of individuals federally authorized to use two arguments that the csa or other provisions of federal law can be 88. stopthedrugwar.org, supra note 8. requested accommodation can never be deemed reasonable if it digestive, genito-urinary, hemic and lymphatic, skin and endocrine; or 46. stopthedrugwar.org, supra note 8; � 21-28.6-4(b). purpose.198 able to use the drug at home, without fear of arrest by the police. the the drug test required for other employees.55 the term "illegal use of drugs" means the use of drugs, the possession none of judgment on the issue of perceived disability. id. the plaintiff claimed that by saying this, the the majority concludes that it would not be a has been deemed a "legal gray area."1 supervision of a licensed health care professional will not be an "illegal the court's narrow reading of the cua isn't persuasive in disposing of this case simply medical marijuana is pursuant to a valid "prescription,"236 two descriptions of the term "illegal use of drugs" that appear in of � 12111(6) acting in conjunction with 21 u.s.c. � 843(a)(3). the court ruled that when the marijuana use was at home and was not alleged to affect workplace was an attempt by the plaintiff to prove csa or other 2003); r.i. gen. laws � 21-28.6-4 (west 2007); vt. stat. ann. tit. 18 � 4473 (west 2007); 267. id. read? one of the purposes of the csa was to control the traffic of drugs determine whether or not the drug use was illegal under the ada.283 246. 500 f.3d 850 (9th cir 2007). this case was decided on remand from the supreme court's 194. 42 u.s.c. � 12111(6)(a). was no longer being taken "under supervision" of the physician.290 validity under state law. id. "drug taken under supervision by a licensed healthcare professional."202 context where it was decided that a person no longer possessed a use possibly could."). authority or even an explanation, the court arrived at a different although the original intent of the ada's drafters was to establish decision was based on the medical marijuana use. 172. see peter b. bensinger, drug testing in the workplace, 498 annals am. acad. pol. & most employers drug test through urinalysis.177 2009] a cruel choice 651 42. see generally state medical marijuana statues, supra note 6; procon.org, state medical section 903 provides that the csa does not preempt state laws that marijuana have the same moral, ethical, and legal responsibilities to use law195 health care professional, is not an "illegal use of a drug" for purposes of employer was not required to accommodate the use of marijuana.59 supervision of a licensed healthcare professional" it is not an "illegal use supervision by a licensed health care professional. the exempted "reasonable accommodation" for an employer to accommodate an majority, the dissent analyzed the plaintiff's claim utilizing the feha, washington state university discriminated against him by prohibiting computer work. id. the plaintiff may attempt to claim that the major life the question then becomes whether a medical professional's federal law" exception) would apply, and the drug would be illegal limit the scope of our inquiry to that issue"). schedule i drugs may be prescribed,231 agreeing with raich, the court held that marijuana's use as a treatment 219. id. the decision in mcdaniel is unclear as to whether or not the court's 41. see state medical marijuana statutes, supra note 6. however, the plaintiff must prove that the defendant believed the plaintiff was limited from a broad 2009] a cruel choice 653 will not be liable for terminating a disabled employee, as long as the at *3-4 (n.d. ohio sept. 26, 2007) (stating that acute back pain can be considered an impairment any right or privilege, including but not limited to civil penalty . . . ."45 on february 20, 2008, less then a month after the california when determining whether an individual was disabled.160 in fact, succeed with a claim under the americans disabilities act. attorney general's declaration that physician-assisted suicide is unlawful under the csa, section elements. each element will be labeled with a letter, as the following: affecting one or more of the following body systems: neurological, musculoskeletal, thus, medical authorized by the csa or other provisions of federal law."263 appeals left for the trial court the issue of what, if any, would be a potentially intoxicating drugs.125 2009] a cruel choice 625 and only rhode island contains a provision accommodations.119 er+vetoes+ab+2279+patient. 843(a)(3). thus, even though a person may be taking drugs pursuant stating: reflection of the will of california's voters.10 b and element c, to be an exception to element a. however, the court hand, they may continue to use marijuana and ease many of their administration.217 further treatment. jonathon's treatment causes him to become violently in the definition of "illegal use of drugs" can be separated into three 180. id. urinalysis, the standard form of drug testing in the workplace is not suitable for soc. sci. 43, 44 (1998). 1. stephanie armour, employers grapple with medical marijuana use, usa today, apr. a controlled substance by misrepresentation, fraud, forgery, deception, or however, it would prohibit employers from firing an the ada because their impairment did not qualify as a disability under not an exception to a general rule of accommodation in the feha). this dichotomy has previously surfaced in the context of drug use. marijuana law with the enactment of the cua in 1996.9 the oregon supreme court took a different position on the issues reliance on loder may have been misplaced.103 any person knowingly or intentionally to acquire or obtain possession of lease to or otherwise penalize a person solely for his or her status as a element c, states the term "illegal use of drugs" does not include mitigating measures such as medication . . . ."165 118. id. at 212. 32. armour, supra note 1. who use medical marijuana.5 associated with the abuse of drugs and alcohol by employees--increased case study, 40 wake forest l. rev. 221, 289 (2005) (citing united states v. nazir, 211 f. supp. and accommodates jonathon when necessary by permitting him to leave receiving protection under the act. following the ada amendments of individuals who test positive for marijuana use."), with josephine elizabeth kenney, how state 229. linder v. united states, 268 u.s. 5, 18 (1925) ("[d]irect control of medical practice in the are only seven individuals that receive marijuana legally as authorized 2005); gaul v. lucent tech., inc., 134 f.3d 576, 580 (3d cir. 1998). generally, the csa is understood to outlaw the use of marijuana, "[n]ot making reasonable accommodations" is toscano v. national 304. id. marijuana. inasmuch as medical marijuana is both illegal to possess and element a and element b. as stated above, the definition reads: rhode island,20 23. see 21 u.s.c. � 812 (2006); see also gonzales v. raich, 545 u.s. 1, 29 (2005). under the language of the definition, which used the present indicative tense, the "prescription," as applied to medical marijuana may render the drug lawful under section 844(a) of in fact, according to the ada, if a person engages in "illegal use of http://www.fda.gov/bbs/topics/news/2006/new01362.html. entities, and is not binding on private employers. barber, 2005 wl 1607189, at *1; see also infra 2009] a cruel choice 635 by an employer.29 812. further, the supreme court in raich held that the federal government's classification of the "under supervision of a licensed healthcare professional."210 two justices vehemently dissented from the ross majority with that prescription was based on deceit, and the drugs were being abused. id. drugs," and the employer acts on the basis of such use, then the person is 22. mich. comp. laws � 333.26421 (west 2008); see dennis hayes, michigan medical brought an action under title ii of the ada,300 concluded in ross v. ragingwire telecommunications, inc.2 b. the united states supreme court "substantially limits" the for medical purposes. marijuana.193 their support and encouragement. action by claiming it was not based on the employee's disability, but and roughly 300,000 americans this note will discuss the implications of medical marijuana in jonathon's doctor prescribed various medications for his nausea had no significance to the case.75 marijuana-usat_n.htm. companies remain uncertain if it is legal to terminate a medical marijuana clarifies that not only is the second sentence an exception to element a, is successful in court then medical marijuana may become a drug that adversely affect major life activities.139 2006) (stating that glaucoma can be considered an impairment under the ada; however, plaintiff in medical marijuana patients (feb. 21, 2008) available at litigate those protections after damage has incurred.49 45. mont. code ann. � 50-46-201(1) (west 2007). addicted to the drug, and thus disabled.186 in collings v. longview fibre co.,184 marijuana is considered an "illegal use of a drug," then the employer training materials or policies" as examples of reasonable that the text of the csa authorizes congress enacted 42 u.s.c. � 12111(6) it in no way intended to abrogate the effect of 21 u.s.c. � have pursued."166 59. id. force.91 washburn had trouble sleeping due to muscle spasms that occurred at 161. id. rhode island's statute noted by one commentator, if this definition were applied to the csa in csa or other federal law.304 fifty states criminalized possession of marijuana by 1965, almost all assuming that the use takes place at home and does physician-assisted suicide.244 the traditional test detects 69. washburn, 104 p.3d at 613; � 475.340(2). 632 hofstra labor & employment law journal [vol. 26:619 ** j.d. candidate 2009, hofstra university school of law. above all, i would like to thank my co- the california supreme court held that an employee whose doctor 291. mcdaniel, 869 f. supp. at 449. alleviated his sleeping disorder.54 supervision" exception) nor element c (the "other uses authorized by they enacted the state compassionate use act."38 prosecution.98 supervision of a licensed health care professional and authorized by the court did not look to the forthcoming arguments). marijuana, medical marijuana does not currently appear to be a drug washburn heeded his b, or c. would the csa be affected if the ada test for impairment.85 violate the ada). at first glance, barber and dvorak seem to foreclose consideration of the option employees for their use of medical marijuana. 197. 21 u.s.c. � 812(c) (2000). drugs in this category have a "high potential for abuse," "no 121. see cal. gov't code � 12926. pursuant to 2009] a cruel choice 655 to 1999. provision giving employers a right to terminate employees for their use 295. barber v. gonzales, cv-05-0173, 2005 wl 1607189 (e.d. wash. 2005). policy . . . suggests that a person forfeits his or her right of medical self-determination by entering 175. 42 u.s.c. � 12111(9)(b). wash. rev. code � 69.51a.005 (west 2009) [hereinafter state medical marijuana statutes]. kennedy, and morgan mccord for their support. also, many thanks to my family and friends for 275. h.r. rep. no. 101-485 pt. 3, at 32 (1990). a user may have another concern exceptions to element a. yet, these courts seem to agree that the drug does not have to be some of the affected major live the trial court noted that since the 152. see u.s. equal employment opportunity commission, supra note 134, at � 39. possession would not be unlawful.225 protected from workplace discrimination for taking, what may be, his california and oregon are the only two states whose courts have a. rhode island used either under supervision of a licensed healthcare professional, or 153. a noted side effect of marijuana is having trouble with their memory or learning. alleviated employee's muscle spasms and was thus no longer disabled), with american with the provision sets out the 249. id. the symptoms or effects of his or her debilitating medical condition."71 the drug use being an "illegal use of drugs." handwritten, and the plaintiff placed his own signature to close the motion. from these facts it can 167. 42 u.s.c. � 12112(a) (2000). ("no covered entity shall discriminate against a qualified are "within the authority of the state" unless there is a "positive conflict state law, an employer could legally fire an employee who used medical needed to be taken into account when determining whether a person was disabled. the amendments the ultimate goal of this provision 87. id. element c must still be consistent with element a, and therefore the person with a severe disease, whose only ability to obtain palliative care element b and element c, creates two distinct exceptions from element because element a (the use of a drug, the possession or distribution of court of appeals' holding that the provision defining "disabled person" 140. see id. at 20-24. the trial court granted summary judgment to the employer on two employer may dictate to an employee the course of medical treatment he or she must follow, under 163. compare washburn, 104 p.3d at 609 (rejecting ada coverage because the marijuana use "illegal use of drugs," it appears that the second sentence creates two not abrogate the first sentence. the employee obtained drugs through deceit and deception by dire those necessities may be." id. (quoting maryland v. wirtz, 392 u.s. 183, 196 (1968)). the dissent characterized the majority's saliva can detect the presence of thc a few hours past the use, and sometimes one to two days after 622 hofstra labor & employment law journal [vol. 26:619 of drugs." however, since the plain language is not entirely clear, it is considered amending the oregon medical marijuana act to include a a. impairment that substantially limits a major life activity their home state allows them to use the drug, they will be committing a motion for distinction from gonzales v. raich, barber v. gonzales, no. cv-05-0173, 2005 wl medications.48 washburn took prior to taking the medical marijuana. see id. however, one should note that if the further, the court stated that feha did not altering the employer's drug policy concerning the medical use of conflict" as required by section 903 when states authorize their medical expressly protected from criminal sanction under state law.118 norml recommends that an employer test the employee's blood or saliva which can determine approved use of marijuana under the [cua] while off duty and away licensed healthcare professional, meaning actually in the doctor's 68. or. rev. stat. � 475.300 (west 2003). barber v. gonzales209 california compassionate use act required the accommodation of marijuana in the workplace was the feha and the cua acting law review note contemplated the substantive due process rights of misstep!, zimbio.com, oct. 1, 2008, 212. id. at 1. this impairment test may be a reasonable accommodation the csa, it was not an "illegal use of drugs" under the ada.297 because of the plaintiff's disability.135 co-author aaron solomon. many thanks to professor leon friedman for his leadership and presented in gonzales v. raich,221 effective form of accommodation, the employer's discharge of the he just had one question. "can i lose my job?" 2008, available at http://stopthedrugwar.org/chronicle/521/marijuana employee is disability discrimination prohibited by the [feha].122 enforcing a policy to achieve or maintain a drug-free workforce." s.b. 465, 2007 sen., reg. sess. person receiving prescription medication through deceit. the barber controlled substances taken under supervision by a licensed health care to element a, or whether it must be read in conjunction with element a, 301. letter from eleanor finger, dir. of residence life, washington state univ., to james e. the california supreme court e. legislative history 644 hofstra labor & employment law journal [vol. 26:619 termination."183 employer's ability to discipline employees for engaging in such use.187 thirteen states have enacted legislation which allows licensed 5. r.i. gen. laws � 21-28.6-4(b) (west 2008). assemblymember mark leno said, is more damaging to a medical marijuana user note 7, at 26 ("it is indisputable that many traditional medications, [even when] properly used, can many employers have workplace drug policies that require courts have consistently recognized that the practice even though all use of medical marijuana had to be accommodated.67 91. id. at 203. chronic pain that he suffered from since being injured serving in the air directly stated: as a result of its inclusion, medical marijuana consumers 143. see generally green v. r.r. donnelly & sons co., no. 3:06cv01867, 2007 wl 2815573, maine,14 290. see id. at *3. safety problems and potential liability to third parties, and more frequent [the illegal use of drugs] does not include?" congress seems to have the statute was written in such a vary from state to state,42 multiple 307. see barber, no. c-05-0173, 2005 wl 1607189 at*1 ("[a]ccordingly, the physician- 144. see nadler v. harvey, no. 06-12692, 2007 wl 2404705, at *5 (11th cir. aug. 24. 2007). toscano v. nat'l broad. co., no. 99 civ. 10006, 2000 wl 1742097 (s.d.n.y. nov. 28, 2000); held that the federal government's classification of marijuana in 285. 21 u.s.c. � 843(a)(3). a medicine (apr. 20, 2006), available at however, the language of the statute states use. loder v. glendale101 employee used marijuana within the past few hours, opposed to the past [the] workplace"74 united states v. oakland cannabis buyers' coop.,200 however, as the dissent in ross noted, the majority's conundrum, and that is in the field of employment. it may tend to be 31. see generally 21 u.s.c. � 812 (2006); 21 u.s.c. � 844 (2006); raich, 545 u.s. at 57 opinion continues: nothing in the text of the feha . . . supports the proposition that a read: 174. 42 u.s.c. � 12114(c) (2000). today, there instruct courts to no longer take consideration of ameliorating or mitigating measures. adaaa � plaintiff, appearing pro se,298 what is most stirring about the majority opinion in ross is the lack inspiration and tireless effort. i would like to thank professor leon friedman for his valuable supervision. many people with disabilities, such as people with 1607189 (e.d. wash. june 7, 2005) (on file with author). 216. nat'l inst. on drug abuse, supra note 198. physician-supervised drug must be an authorized drug use under the 67. id. under the ada, the plaintiff must establish a prima facie case of marijuana, findlaw, feb. 1, 2008, http://writ.news.findlaw.com/amar/20080201.html. the author 12111(10) (2000). the use. id. 2006, available at http://www.civilliberties.org/mmarworkplace.html. (after considering the : provisions of the csa which the second sentence of the definition may news, jan. 7, 2007, available at http://cannabisnews.com/news/22/thread22501.shtml. author, ari, for his patience, leadership, and all of his hard work. this note was born out of his colorado,12 the ninth circuit in raich v. gonzales246 nevertheless he was fired.93 132. julian ayrs, governor schwarzenegger vetoes ab 2279. patient rights jeopardized by the 19. or. rev. stat. � 475.300 (west 2003). washburn v. columbia forest products,50 permit employers to prohibit medical marijuana consumption at the id. 213. id. at 10. employment and housing act94 permitted such use. id. "it is beyond peradventure that federal power over commerce is `superior to unlawful drug activity," and the definition of "illegal use of drugs" in the disabilities act, eeoc bull. no. 915.002 (2002), at � 39, available at the plaintiff contended that by enacting an amendment to the cua the employer alleging disability discrimination under the california fair from the jobsite is likely to impair the employer's business operations pursuant to such an order, such distribution would not be unlawful; see generally nat'l inst. on makes the point that an individual with well-managed epilepsy would not prevail on a disability barber v. gonzales295 employer to accommodate an employee's use of marijuana. however, if according to the present tense, and thus, the issue of whether an individual had a accordingly, he did not 3. cal. health & safety code � 11362.5(a) (west 2007). for example, the 4. ross, 174 p.3d at 206-07. reviewed fundamental rights such as the right to live, to die with dignity, of washburn, who used medical marijuana, did not violate the ada, but also noting that "[b]ecause eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, the employer may be liable if he discriminates on the basis of the its use. 270. h.r. rep. no. 101-485, pt.2, at 79 (emphasis added). substances or another form of therapy.211 the next issue the court of appeals considered was whether the 79. id. at 164. 62. washburn, 104 p.3d at 611. along with their side effects should be considered part of the disability, and accommodated for as rejected it.114 on the one 78. see id. at 164-65. may be illegal under the ada.294 be drug tested throughout the course of employment.173 308. see americans with disabilities act of 1989: hearings on s.933 before the comm. on federal law.194 11. alaska stat. � 17.37.010 (west 2008). 2009] a cruel choice 631 actually discussed during the legislative history of the ada. in the have followed california's initiative: alaska,11 registered qualifying patient . . . ."47 authorized by the csa or federal law. if either of the above arguments marijuana users and distributors. justices left open the possibility of challenging a law that restricts a particularly on what "reasonable accommodation" under the feha means. 119. cal. gov't code � 12926(n)(2) (west 2005) (emphasis added). be construed to require "[a]n employer to accommodate the medical use implications of prohibitions on medical marijuana, 118 harv. l. rev. 1985 (2005); adam hyatt, www.eeoc/gov/policy/docs/accommodation/html. the eeoc guidelines state that medications prescription drugs.97 466, 471 (6th cir. 2007); boone v. rumsfeld, 172 fed. app'x. 268, 271 (11th cir. 2006); tobin v. 217. id. cancer, aids or hiv, chronic and acute pain, anorexia, migraines, of protecting medical marijuana users under the ada, but upon closer examination, neither case patient who is allowed to use marijuana pursuant to state law will not be by taking into account mitigating factors for a determination whether the protection of the ada the ada, each element will be separately analyzed. that at first glance of the definition of "illegal use of drugs," the had to be analyzed in "lockstep" with the similar provision defining patients forced to decide between 84. libby tucker, medical marijuana bill ignites a debate in oregon legislature, daily j. crime against the federal government. accommodation; and 3) the employer discriminated against the plaintiff supreme court decisions, the ada protections were extremely contain provisions in their medical marijuana laws that could be at that time, this meant that the supervision of medical professionals as part of a course of the court found 237. 42 u.s.c. � 12111(6)(a). shortly after this case was decided, the oregon legislature illegal. yet element b and element c make exceptions to element a. 168. 42 u.s.c. � 12112(b)(5)(a). employers are only required to make reasonable compared to a claim brought prior to the amendments. the amendments 28. raich, 545 u.s. at 29. the supreme court held that the united states commerce clause 642 hofstra labor & employment law journal [vol. 26:619 not illegal. therefore, since medical marijuana is taken "under the drugs.288 his use of medical marijuana in his dorm room.301 opinion as "conspicuously lacking in compassion."117 ross' employer required that he take a drug test, which tested government, but the risk of federal prosecution was extremely low. 257. id. disabled] shall be made without regard to the ameliorative effects of distribution of it is unlawful under the csa without regard to its result two to three weeks after the marijuana use.56 while one of the purposes of the ada was to person has violated [section] 843(a)(3).287 currently, the use of medical marijuana is legal pursuant to the law be assumed that the plaintiff was acting without an attorney. see motion for reconsideration and 2006) (holding that defendant's termination of dvorak, who used "medical marijuana," did not does not contain a definition for the term "prescription."233 discrimination charge under the ada against an employer who put up signs stating that "epileptics 277. see 21 u.s.c. � 801 (2000). assessment of whether an individual had a disability should be analyzed determined this literally meant that the employer would not give the employee a job involving definition of element a. under element a alone, the medical use of "illegal use of drugs" and it is conduct that results from a disability, then 159. 527 u.s. 471 (1999). intoxicating effects, so do many other prescription drugs.123 162. washburn, 104 p.3d at 612. the court of appeals discussed the trial court's ruling that in essence, these states will be allowing a a broad scope of protection,157 191. 545 u.s. 1 (2005). an employer need not accommodate the "medical use of marijuana in "person with a disability" under the ada.60 professional was no longer taking the drug "under supervision."207 obtain and secure employment, especially with an employer who tests its thus, the decision in ross to remains as the law in california. of experimental drugs in element b.267 [u]nless an employer can demonstrate that an employee's doctor- many employees were denied relief under if he chooses marijuana. that concern is the very realistic fear of losing 294. see 42 u.s.c. � 12114(a); 42 u.s.c. � 12111(6). see generally gonzales v. raich, 545 the plaintiff exaggerated his physical impairments to his physicians in experimental drugs, under supervision by a health care professional. had gained traction in recent years.253 though an employer need not accommodate an employee's medical provisions of federal 113. id. at 207-08. california.8 it is clear from this report that element b was intended to prohibit marijuana is a federal crime.31 california was the first state to recognize a medical conclude that marijuana, when used under supervision of a licensed due to its intoxicating affect is baseless inasmuch as the majority does in 1978, as part of a 99. id. at 205. the court noted that the cua merely exempted medical marijuana users from sentence creates two separate exceptions to the first sentence. the plaintiff who is prescribed drugs through subterfuge or fraud, element b 2009] a cruel choice 657 second clause of the second sentence, following the comma, labeled element c, is the use of a drug act . . . . such term does not include the use of a drug taken under the majority analyzes the issue as if the case was brought 205. see id. at 449. this can be inferred because the court, in figuring out how to structure 42 278. see 42 u.s.c. � 12101 (2000). to change or modify workplace policies.175 of legal medical marijuana in the united states.216 bona fide order--i.e., directions for the preparation and administration of * j.d. candidate 2009, hofstra university school of law. thank you all who supported me have legalized the use of medical marijuana, that day may be upon us when a policy is changed to in the definition, as it was not taken "under supervision of a licensed 302. see barber, no. c-05-0173, 2005 wl 1607189 at *1. 630 hofstra labor & employment law journal [vol. 26:619 on the other hand, rhode island's medical marijuana law 147. see shalbert v. marcincin, no. civ.a.04-5116, 2005 wl 1941317, at *4 (e.d. pa. aug. 9, implied a stricter reading; an individual 107. see vikram david amar, the california supreme court's decision on whether an 243. 521 u.s. 702 (1997). revised version of the bill is being debated in the oregon legislature.89 (emphasis added). but see michael vitielo, proposition 215: de facto legalization of pot and the 110. see ross, 174 p.3d at 212 (kennard, j., dissenting). effects.htm (last visited may 18, 2009). hawaii,13 responsibilities that included maintaining dangerous heavy equipment.51 (or. 2007). such description of the definitions of "illegal use of drugs" was: syndrome, emotional or mental illness, and specific learning disabilities. there is no mention of other 177. dale h. gieringer, urinalysis or uromancy: the untold costs of drug from a disability.109 by the terms of element a. simultaneously, by the terms of element b, this silence is generally (west 2003). 2. the controlled substances act and human resources and the subcomm. on the handicapped, 101st cong. 828, 837-38 (1989) and in particular, a single provision of the csa. the specific provision professional are not illegal uses of a drug for purposes of the ada.276 57. id. thus, waiving or jobs of employees who use medical marijuana.46 use of medical marijuana, he may succeed under oregon disability mendelson attorneys (june 2005), available at marijuana, used under the supervision of a licensed healthcare health care professional" meant "prescribed or authorized by a licensed possible theory, suggested in a footnote in washburn v. columbia forest raich191 658 hofstra labor & employment law journal [vol. 26:619 require any accommodation of any medical use of marijuana on the property or premises of any employers the ability to test employees and applicants for illicit drug compliance manual]. licensed health care professional and authorized by the csa or other 53. id. medical marijuana act68 congress expressly overruled sutton, enacting rules of the supreme court decided that congress intended mitigating despite states' efforts to legalize the use of medical marijuana upon accommodations as long as they do not impose undue hardships. 42 u.s.c. � 12112(b)(5)(a); 29 2008, a medical marijuana user may have a higher likelihood of success throughout the process of researching, writing and editing this note. in particular, i would like to 183. humphrey v. mem'l hosps. ass'n., 239 f.3d 1128, 1139-40 (9th cir. 2001); dark v. 178. id. ninth circuit, however, the court did not rule due to the tenet not to "consider arguments that are if the drug was being abused, even though it was prescribed, it b. use of a drug taken under supervision of a licensed healthcare even when in the united states.277 drug's possession or distribution cannot be unlawful under the csa.306 such substance was obtained directly, or pursuant to a valid prescription section 844(a) of the csa 241. id. at 1990. 34. see id. "that medical treatment is a matter for individuals and their physicians is not b, or c.196 on reasonable accommodation & undue hardship under the americans with does not meet element c. context by turning to a dictionary and found that "prescription" was, "a 39. 42 u.s.c. � 12101 (2008). in 2008, congress amended the ada in response to united the feha, but only noted that the cua did not provide any employee presence, or to a drug authorized or prescribed by a doctor during the 2009] a cruel choice 633 thus, it is conceivable that a sentence, since the drug use would not have met either of the exceptions 72. washburn, 104 p.3d at 614. considering that during the last ten years eleven states [now thirteen] protections that they can rely on up-front, instead of being forced to turn to legislative history in order to determine the legislative intent.). sooner than expected."255 however, the court further held professional practice."224 the fact that it is not "illegal" for purposes of the ada would not the voters intended to address the rights and obligations of employees and employers." id. at 204. supra note 157. they state, unequivocally upon termination for medical marijuana use. and confusion, and can lead to physical dependence; additionally, continual use of over-the-counter marijuana may be a reasonable accommodation. except for these selected few, the authors of this note have recognized because of a disability."181 another potential argument is that the medical marijuana use itself medical marijuana is a drug, the possession or distribution of which or, on the other hand, they may 305. 42 u.s.c. � 12114(6)(a) (2000) (emphasis added). first "in the context of the present case."291 legally taking drugs (e.g., taking drugs under medical supervision for turnover . . . ."102 showing that if a drug is taken supervision of a health care professional. this report clearly states that through urinalysis.172 71. id.; � 475.302(7). since the marijuana use in ross however, not only does the actual text of the statute the 70. washburn, 104 p.3d at 613. 76. id. at 616. patients for various medical conditions.41 126. ross, 174 p.3d at 209-10. 2008), no. c043392 (aug. 7, 2006) [hereinafter amici curiae brief of american pain foundation]. this new medication made him too groggy the following day, and thank my parents, the editors and staff of the hofstra labor & employment law journal, and my the term "illegal drugs" . . . does not include drugs taken under another amended in 2008, took effect on january 1, 2009, and stated that mitigating measures no longer of the oregon medical marijuana program.53 doctor's recommendation. washburn found that the marijuana since it was undisputed that washburn did not produce, deliver or disability" in order to bring a claim under the ada. see 42 u.s.c. � 12112(a). when employer third party, the employer, to determine the medical decisions of an csa, marijuana is a schedule i drug, meaning it has no accepted safe use in the united states. � since many jobs require that an of such an impairment or is regarded as having such an impairment, then 30 (1997); conant v. walters, 309 f.3d 629, 639 (9th cir. 2002). assessing whether an individual has a disability. therefore, a person's authorized by the csa or other provisions of federal law. therefore, 287. mcdaniel, 869 f. supp. at 449. of course, employers are permitted to terminate employees due to eight employees, who did not narrowed. one study in 2003 found that the employer prevailed in which is unlawful under the csa. id. the first clause of the second sentence, labeled element b, is medication, such as aspirin or ibuprofen can lead to side effects such as ulcers and stomach 2009] a cruel choice 641 however, following the supreme court's ruling, it a federal brought.107 currently accepted medical use in treatment in the united states," and a "lack of accepted safety for oregon law defined section ii will analyze requirements and problems that may arise if an i. an employee's use of medical marijuana: under state law marijuana appears to be an "illegal use of drugs."201 and element c do not create exceptions to element a, but must be read use of marijuana.28 and michigan.22 diminished work productivity were inapplicable.106 including the use of experimental drugs, taken under supervision of a legislature that medical marijuana patients need not be unemployed to the administration mcdaniel court had considered the toscano ruling, it would not have b. oregon 158. amy l. allbright, 2003 employment decisions under the ada title i--survey update, 35. ross v. ragingwire telecomms., inc., 174 p.3d 200, 211 (cal. 2008) (kennard, j., fluids.73 207. see id. at *3. the court remanded the case to the trial court for a determination if the some claim the substantive due process doctrine supports the of the csa that the court is referring to states, "[i]t shall be unlawful for 252. id.; 21 u.s.c. � 812 (2000). labor & employment law journal for their hard work and dedication to preparing this note for the "prescription" of schedule i substances, and the possession of id. at 611. consistent with the csa in at least some capacity. in mcdaniel v. workplace policy for cannabis (2) any mental or psychological disorder, such as mental retardation, organic brain their medical conditions to prospective employers, and states "[t]he anyone at the job site.86 an employer who terminates or disciplines that washburn could be found disabled and, as a result, summary employee.179 http://www.safeaccessnow.org/article.php?id=5559. category includes, for example, experimental drugs taken under 7. armour, supra note 1; see also brief of the american pain foundation et al. as amici 190. 42 u.s.c. � 12114(a) "[t]he term `qualified individual with a disability' shall not include 21. vt. stat. ann. tit. 18 � 4471 (west 2007). supreme court's decision in gonzales v. raich, the author noted, "under state and federal [disability disabled employee170 however, the court held that by looking at the plain taken "under supervision of a licensed healthcare professional," and it would be an "illegal use of individual was presently disabled, rather then potentially or he may also be able to claim a disability under the act.137 doctor told him that it was still considered illegal by the federal using "controlled substances" such as marijuana or morphine under course of treatment.203 54. id. at 610-11. make a reasonable accommodation, it is only altered for the disabled understanding is that medical marijuana is illegal under federal law 142. see pimental v. dartmouth-hitchcock clinic, 236 f. supp. 2d 177, 182 (d.n.h. 2002). the court is asking whether element b and element c create exceptions labor and human resources and the subcomm. on the handicapped, 101st cong. 828, 837-38 into account would have a significant impact on the issue of medical the court of authorized by the csa or other provisions of federal law. see id. on his marijuana use), and dvorak v. clean water servs., 432 f. supp. 2d 1090, 1095, 1099 (d. or. employment rights.108 state-sanctioned medical marijuana.222 medical marijuana laws and cases brought under state disability law. few weeks.180 limited a major life activity.61 150. shalbert, 2005 wl 1941317, at *4. this language on its own merits, it does not appear to require an a. use of drugs, possession or distribution of which is unlawful under c.f.r. � 1630.15(d). the ada defines an "undue hardship" as an "action requiring significant patient from obtaining palliative care.245 doctor to determine.34 distribute under the csa and also a drug that is taken under supervision the employer a copy of his physician's recommendation for the drug; drugs for which the applicant [had] no legitimate medical explanation, ctr.,204 210. id. at 2. the court concluded that medical marijuana was an "illegal use of drugs." id. drug abuse, the concerns in loder of increased absenteeism and a b c the court implied that medical marijuana was taken "under supervision of a licensed healthcare however, proponents of the bill argued that the court noted that the nation has a long federal law even in states that allow its medical consumption.192 that use of medical marijuana, even as a last resort, is not a fundamental the csa, specifically section 843(a)(3).292 247. id. at 866. benefit from their medicine."130 licensed health care professional. it also does not include uses his job. in california (and possibly more states to come), a medical right to medical marijuana is a fundamental right, then laws restricting as the applicant was disqualified from hiring or promotion."104 the term "illegal use of drugs" means a. such term does not include for an employee who uses medical marijuana. use as long as it does not occur at the jobsite.171 2009] a cruel choice 621 speaks dispositively on the issue. barber only concerned title ii of the ada, governing public 1970 that all marijuana use, medical and otherwise, became illegal.252 640 hofstra labor & employment law journal [vol. 26:619 the court interpreted the second sentence, which contains element is considered to be "under supervision" as it is substantially similar to oregon law.), with ross, 174 p.3d at 206-08 (holding that the provision stating that nothing in the advisement, and professor grant hayden and professor herbie difonzo for taking time to discuss 11362.5(b)(1)(a) (west 2007); colo. rev. stat. ann. � 18-14-1(b) (west 2001); haw. rev. under the ada; however, plaintiff in this particular case did not present sufficient evidence to the explanation also includes the use the construction of the definition of "illegal use of drugs" in a cruel choice: originally entitled proposition 215, passed by referendum, a direct before considering element c, the definition of "illegal use of employee when those decisions are traditionally left for the patient and under a violation of the cua, and finds that the cua did not create any 218. id. 201. see 42 u.s.c. � 12111(6) (2000). 149. mondaine, 408 f. supp. 2d at 1200. that of the states to provide for the welfare or necessities of their inhabitants,' however legitimate or court ruled, in a different context, that the csa did not change this employer thought that dvorak was not fit for any job, sedentary or active. id. however, the court medical marijuana laws affect workplace drug testing, occupational health & safety, apr. presence of their doctor. accommodate his disability through a drug test that would only 66. id at 613. 202. id. 184. 63 f.3d 828 (9th cir. 1995). our patients and asked them what they thought, and they said they wanted marijuana treated like any "illegal use of drugs."189 involves off-duty conduct by the employee away from the jobsite that 222. see id. at 63 (thomas, j., dissenting). opiate-derivative painkilling medications and was terminated by his laws � 333.26424 (west 2008); mont. code ann. � 50-46-103 (west 2007); nev. rev. stat. � if it were deemed that the additionally, the court in pain of termination . . . ."). 208. see id.; see also mcdaniel, 869 f. supp. at 449. element b is an exempted category,271 will be barred from bringing a claim.293 unlawful under the csa, then the drug is illegal. however, if the drug is the oregon supreme court agreed with the have failed."248 distribution of which if this was accurate, why would congress use the phrase, "such term uses of drugs, nothing in the ada preempts the employee from raised for the first time on appeal." raich v. gonzales, 500 f.3d 850, 868 (9th cir. 2007). but see use of the drug or other substance under medical supervision." id. in fact, it was not until the passage of the csa in use of drugs."268 268. see id. 25. � 812(b)(1)(a-c). that explicitly stated that employers need not accommodate the use of within the context of a patient who uses medical marijuana.241 the answer to jonathon's question is largely left unanswered and the definition set forth in the original ada. through a string of the drug . . . under medical supervision."25 http://www.medicalmarijuanapatients.org/news_110408.cfm. 82. id. at 164. the court limited its inquiry to whether the plaintiff was disabled. id. authored the amendment provided amici curae concurring with the one of these supreme court decisions was sutton v. united air of analysis under the feha, the law under which the suit was separate element b from element c, the description of the "illegal use employer must accommodate an employee's disability.121 b, or c. regardless if it is for medical purposes. id. at 22, 29. prescription medication were being abused. if the drugs were abused, then they were no longer of employment because of misconduct and termination of employment legal under the csa. vitiello believed that deputy attorney general mackey's statement only would not have had to hold that the second sentence did not abrogate the first sentence. therefore, americans with disabilities act, eeoc compl. man. (bna), � 24 (oct. 17, 2002) [hereinafter 73. id. (citing state v. daline, 30 p.3d 426, 430 (2001)). ("feha") and wrongful termination in longer received protections under the oregon disability law. id. 234. united states v. nazir, 211 f. supp. 1372, 1375 (d.n.j. 2002). 65. id. at 612. this issue was a matter of first impression for the oregon court of appeals. 135. accord jenkins v. cleco power, llc, 487 f.3d 309, 315 (5th cir. 2007); mcpherson v. 648 hofstra labor & employment law journal [vol. 26:619 was taken during the course of treatment.208 since the csa is silent on the methods by which that, while medical marijuana use may be unlawful under provisions of employee attempts to bring a claim under the americans with benefits, and therefore, does not condone its use for medical purposes.26 recommendation to use marijuana is, in fact, a "prescription." the csa section 829 of the csa sets out the legal methods through which authorized by the controlled substances act or other provisions of controlled substances act or other provisions of federal law.303 of marijuana, even when it is for medical purposes. id. seeking protection under the ada will be "deemed disabled based on `illegal use of drugs' does not include the use of controlled substances, improper for an employer to summarily fire an employee for at-home montana medical marijuana act states that a "qualifying patient . . . 127. press release, americans for safe access, state bill protects employment rights of 235. duvivier, supra note 225 at 288-89. 182. id. the structure of the second sentence of [the definition of "illegal use of analyzed in ross v. ragingwire telecommunications, inc.90 ill at night, so much so that he cannot sleep. jonathon works at a large affected his performance at work. eventually, the doctor informed employer would test the blood or saliva, instead of the urine, of an glaucoma,145 a "high potential for abuse," "no currently accepted medical use in several over the counter medications have effects that could impair the new mexico,17 state that mitigating measures need not be taken into consideration when specifically working hours. id. at 1097. dvorak attempted to bring a case pursuant to the ada under the the ada permits employers to terminate employees who use disabilities act.78 disability.182 therefore, the medical use of marijuana is an "illegal use of drugs" 225. this argument was never raised in the supreme court. it was raised on remand to the 101. 927 p.2d 1200 (cal. 1997). for the purposes of the ada. 171. compare washburn, 104 p.3d at 612 (holding that the provision stating that an employer infirm to choose marijuana as a legal option,30 ultimately, the dissent opines that it is criminal liability under state statutes, and "nothing in the text or history of the cua suggested that 96. see id. at 203. legislature.131 disabled, and the person will no longer have protection under the 656 hofstra labor & employment law journal [vol. 26:619 u.s. 1, 22, 29 (2005). since marijuana is a schedule i drug, it's use is illegal under federal law, 30. see state medical marijuana statutes, supra note 6. urinalysis cannot not a "qualified individual with a disability."188 by only protecting those who possess medical marijuana from criminal 198. 21 u.s.c � 828(a) (2000); 21 u.s.c. � 841(a) (2000). it is unlawful unless pursuant to an law provided in the ada--that an employer must accommodate a 269. id. at 47 (emphasis added). issues.64 affect work performance and safety in ways far more serious then off-premises medical marijuana 735. supreme court decided ross, a bill was introduced in the california accommodation relative to the overall size and financial resources of the employer. 42 u.s.c. � one who has severe nausea from cancer treatment, has the wasting effect 2009] a cruel choice 645 296. gonzales v. raich was decided in june 2005. less then a month later in july 2005, the court assumes that the term "under supervision of a licensed well. id. civic-professional/4066124-1.html. the bill also stated that nothing in the oregon marijuana law illegal drugs, even when that employee is disabled, as long as the drug the court, however, involved in washburn.77 the term "illegal use of drugs" does not include medical marijuana. plaintiff's medication into consideration, it determined that the plaintiff 221. 545 u.s. 1 (2005). 280. 869 f. supp. 445 (s.d. miss. 1994). 233. see generally 21 u.s.c. � 802 (2000). controlled substances may be prescribed.226 phrase "[s]uch term does not include" creates at least one exception to may be able to state a claim under the ada.134 f. the interpretation of the courts but element b and element c are two separate exceptions.264 law.237 256. 42 u.s.c. � 12111(6)(a) (2000). drug renders it illegal even in a state that allows its medical use. see generally raich, 545 u.s. at unlike the for pain, including opiate-based pills and medical marijuana, may affect the employee during interpreted as providing protections for employees.44 of the present case, the second sentence of [the definition of `illegal use 236. but see id. at 289 n. 379. duvivier noted that since marijuana is a schedule i substance, 248. id. at 864. disabilities act now applies to more people, chicago tribune, jan. 5, 2009 available at if the designated letters are substituted for the elements then the professional 173. id. at 45. 104. loder, 927 p.2d at 1205 (emphasis added); ross, 174 p.3d at 214. if the medical use of marijuana use, whether at the job or at home, presented a safety risk to currently impaired. id. 9. see cal. health & safety code � 11362.5(a) (west 2007). in house report no. 101-485, another description of the definition jonathon has cancer. he was diagnosed a year ago and has the plaintiff has been authorized to use marijuana because of insomnia or outlines the penalties for simple possession.223 anorexia,147 further, the court ruled that as justice kennard of the california supreme court pointed out, protects employees from discrimination based on their medical a harvard misrepresentation or deceit is involved in obtaining such drugs, that therefore, it becomes best possible medication.33 process claim.247 2005). 129. id. the bill carved out an exception for safety-sensitive positions. id. 272. see id. use of medical marijuana without requiring the employer to demonstrate of a federal compassionate use program. id. protect people who used drugs that were illegal under federal law.100 if the required to accommodate medical marijuana at the workplace.63 remove it from its schedule i classification in the csa, nor would it nevertheless, the california supreme court stat. � 329-122 (west 2007); me. rev. stat. ann. tit. 22, � 2383-b (west 2004); mich. comp. 103. ross, 174 p.3d at 214 (kennard, j., dissenting). the specifics of these laws some courts have recognized the distinction "between termination legislature that sought to overturn this ruling.127 58. id. the court rejected their claim, may not be arrested, prosecuted or penalized in any manner or be denied 179. the nat'l org. for the reform of marijuana laws, norml's model 151. e.g., nadler v. harvey, no. 06-12692, 2007 wl 2404705, at *6 (11th cir. aug. 24, 300. id. nevada,16 mandate that the definition of "disabled person" be analyzed in limited in a major life activity," which meant that mitigating measures had to be taken into account. its use would have to be analyzed utilizing strict scrutiny.239 perhaps element c will clarify this ambiguity. other medicine." id. states "[n]o school, employer or landlord may refuse to enroll, employ or in ross v. ragingwire on behalf of associations of physicians, nurses committee wishes to emphasize . . . the right of individuals who are the use of medical by the federal government.220 and could this actually be what congress intended? would the ada marijuana use, the employee will not receive any protection from the 29. compare press release, littler: employment & labor solutions worldwide, supreme accommodate the medical use of marijuana in the workplace.169 under the controlled substances act and does not mean the use of 48. stopthedrugwar.org, supra note 8. jesse stout, the executive director of the rhode underlying illness will be the determinative factor whether the individual specifically stated that nothing in the act shall even put you behind a computer," the court did not find this strong enough to pass summary employer when the abuse was discovered.281 order to obtain prescription medication.282 the application of the csa to non-disabled individuals who engage in not use marijuana in the workplace.82 possession or disability discrimination law. section i will discuss various states' the underlying medical condition, and not based on what therapies they taking 86. see id. c. the duty to reasonably accommodate of com., feb. 21, 2007, available at http://www.allbusiness.com/services/religious-grantmaking- ada.163 only a medical marijuana user who obtains authorization through deceit professional ask his doctor what the next step would be, when he remembered that his 93. id. a person who uses medical marijuana will have another provisions of the csa, then the medical use of marijuana, in general, 80. id. the oregon supreme court only considered the prescription medication that disability as required by oregon's disability law.58 thus, in oregon there is the 2009] a cruel choice 639 having a disability, dvorak, 432 f. supp. 2d at 1099; and second, even though the plaintiff used the term "under supervision" is somewhat ambiguous. it is unclear the discrimination on the basis of use of such drugs would not be the court's ruling implied that it understood "under supervision drugs" already appears to be contradictory when it comes to medical 303. id. (emphasis included). marijuana to remain in the workplace" or "[p]reclude or restrict an employer from establishing or 28 mental & physical disability l. rep. 309, 319 (2004). 1. the selected few in the compassionate use program occurred at home during off-duty hours.112 discrimination based on an employees' medication use, even if the between [the csa] and that state law so that the two cannot consistently marijuana is an "illegal use of drugs"40 "the term 619 opponents of the bill argued that the court phrased the purported fundamental interest possession, administration or distribution of the drug at the workplace, and did not include using the outlawing the possession of marijuana in gonzales v. raich199 any ameliorating factors.161 legal settlement, nida began to supply marijuana to patients whose use is the basis of the employment decision.190 california and oregon, at risk in most other states as well, drug war chronicle, feb. 1, labor and employment lawyer richard meneghello said: "it's almost an untenable situation. shortcomings of direct democracy, 31 u. mich. j.l. reform. 707, 735 (1998) (arguing that the 227. id. arguments may still be viable even after the supreme court's holding in 239. see, e.g., griswold v. connecticut, 381 u.s. 479, 503-04 (1965); reno v. flores, 507 u.s. or distribution of which is unlawful under the controlled substances use of a drug taken marijuana advocates suggest a model workplace policy whereby the that the term does not include the use of drugs taken "under the positive for thc, the active chemical found in marijuana.92 provisions of federal law."). july 1, 2005) (holding that defendants did not violate the ada when they terminated barber based the court followed a holding in the criminal law undergone chemotherapy for the last two months, and faces six weeks of claimed that congress intended "to limit authorized by the conclusion302 of marijuana in any workplace."69 18, 2007, at 1b, available at http://www.usatoday.com/money/workplace/2007-04-16-medical- 2d 1372, 1375 (s.d. fla. 2002)). duvivier argued that a district court's definition of the term intent not to include the medical use of marijuana in the ada's raich,27 the requirement to take mitigating factors unlawful under the csa, and medical marijuana therefore meets the regards to the feha claim.116 263. h.r. rep. no. 101-55, at 56; see also 42 u.s.c. � 12111(6)(a). since then, twelve states caused by aids, or is otherwise anorexic, may claim that this thus, when a doctor recommends the use of medical marijuana, the use government stopped supplying medical marijuana to new patients.218 plaintiff's interpretation.113 117. id. at 209. states supreme court cases that narrowed the intended broad protection of the act to only a small under their state's disability discrimination law. in the oregon case, though arrest or prosecution by the but then moved to the house where it died in committee.88 is unlawful under the csa. since marijuana is a schedule i drug,197 while the questions concerning medical marijuana and employment would not affect job performance.129 196. id. oregon,19 mitigating factors, such as medications, would have to be taken into products, inc.154 care professional . . . .' thus, depending on how courts interpret this exception, medical marijuana employers are screaming for answers . . . and there's not one out there right now. there's a lot of individual who uses medical marijuana does not have a substantive due supervision by a licensed health care professional, or other uses currently, a is criminal under federal law, even though that same conduct is interpretation creates one exception to element a; if the drug's 94. cal. gov't code � 121900 (west 2005). disapproving employer upon the failure of a drug test, despite the fact 292, 301-02 (1993). administered in the physical presence of the physician to be considered see id. prevent the federal government from enforcing the csa against marijuana alleviated washburn's insomnia, he was no longer disabled, marijuana use.133 marijuana laws, http://medicalmarijuana.procon.org/viewresource.asp?resourceid=881 (discussing the feha mandates a general rule that an that medical marijuana is considered an illegal drug under washburn's 92. id. there was evidence that