STATE DRUG TESTING LAW 101 BY ANDREW CURRENT, THE CURRENT CONSULTING GROUP
Medical Marijuana and the Americans with Disabilities Act
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ccording to census data, over 56 million American adults have some sort of disability. Tese
people are protected from unjustified discrimination by the Americans with Disabilities Act (ADA). Historically, this protection has extended to individuals dealing with alcohol dependency, and has made workplace alcohol testing a very tricky procedure. But although alcoholism has been deemed a protected disability under the ADA, illicit substance abuse has always been excluded—meaning that employers are free to drug test for illegal drugs without fear of violating the ADA. However, given that a majority of states in the U.S. have legalized some form of medical marijuana, the question of medical marijuana and the ADA begs an answer.
The Argument for Applying the ADA to Medical Marijuana Under the ADA, employers are very limited in their ability to inquire into individuals’ medical history and status. Since prescription drugs can, by their common use, tell an employer what illness or disease an individual may have, it is generally considered prohibited for employers to test for prescription drugs. Te exception is when there is a compelling business necessity, such as highly safety-sensitive workplaces. Since medical marijuana is recommended by a doctor, it should be protected in the same way as other medicines. As well, Section 12111(6) of the ADA exempts drugs taken under the supervision of a licensed health care professional from the definition of “illegal use of drugs.”
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The Reason You Can’t Apply the ADA to Medical Marijuana However, medical marijuana isn’t like any other prescription drug. For starters, it isn’t a prescription drug. No medical marijuana law allows a doctor to prescribe marijuana, merely to recommend its use. Why are semantics so important in this case? Because under the Controlled Substances Act (CSA), Schedule I drugs cannot be prescribed by anyone. Period. As a workaround, pro-legalization advocates have switched to using the word recommend. It’s a built-in defense against prosecution for violating the CSA. But while prescription drugs do merit protection under the ADA, medical marijuana is not a prescription drug. It is a Schedule I illegal substance, in the same category as heroin, LSD, and ecstasy. Meaning, there is no valid medical
purpose. Tat doesn’t change if a doctor recommends it instead of prescribing it. As well, Section 12111(6) of the ADA
(the same section cited above) limits the prescription drug exemption to “uses authorized by the Controlled Substances Act.” Does the CSA permit marijuana use? Prescribed, recommended, or any other way? Te answer is no. Tis was made clear in 2016, when the Drug Enforcement Agency (DEA) declined petitions to reschedule marijuana. Chuck Rosenberg, DEA Acting Administrator, stated that it will remain Schedule I because it “does not have a currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse.” While many argue the exact opposite, the simple truth is that marijuana has not undergone the same rigorous testing as all other Food and Drug Administration (FDA)
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