The law students’ premise is that the ADA’s definition of “illegal use of drugs” by its terms excludes medical marijuana use legal under state law. That definition is:
The term “illegal use of drugs” means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Such term does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of federal law.42 U.S.C.12111(6)(A).
This definition ties into another ADA provision, 42 U.S.C. § 12114 which excludes employees and applicants engaged in the “current use of illegal drugs” from the scope of the law’s protections. Because marijuana is an illegal drug for all purposes under federal law.
The student authors make the point that the first sentence of the definition of “illegal use of drugs” states the general rule, while the second sentence gives two separate exceptions to the general rule. That’s a fairly uncontroversial statutory reading, based on the use of the word “or” in the second sentence.
Because most state compassionate use acts, including the AMMA, tie legal marijuana to a physician’s recommendation, the article argues that state-permitted medical marijuana use is “the use of a drug taken under supervision of a licensed health care professional.” Therefore, medical marijuana use legal under the AMMA would not be removed from the protection of the ADA by the exclusion for the current use of illegal drugs provision. Whether this argument will gain acceptance in the courts remains to be seen.
For the time being, however, cautious Arizona employers will consider the QPs in their workforce to be protected by the ADA, notwithstanding their use of a drug illegal under federal law.