Pubdate: Mon, 05 Jan 2015
Source: New Mexican, The (Santa Fe, NM)
Copyright: 2015 The Santa Fe New Mexican
Contact: http://www.santafenewmexican.com/SendLetter/
Website: http://www.santafenewmexican.com
Details: http://www.mapinc.org/media/695
Author: Andy Winnegar
Note: Andy Winnegar has spent his career in rehabilitation and is 
based in Santa Fe as a training associate for the Southwest ADA 
Center, a program of TIRR Memorial Hermann Rehabilitation.

MEDICAL POT USERS NOT PROTECTED BY AMERICANS WITH DISABILITIES ACT

With legalized medical marijuana in 23 states and Washington, D.C., 
you might think that legal use of the plant would not result in the 
loss of your job or other dire consequences, but you are wrong.

This is because federal law still classifies marijuana as a Schedule 
I drug, which means it has no approved medical uses. Drugs and other 
substances that are considered controlled substances under the 
Controlled Substances Act are divided into five schedules.

Schedule I controlled substances are considered to have no currently 
accepted medical use in the U.S., a lack of accepted safety for use 
under medical supervision and a high potential for abuse.

Some examples of other substances listed in Schedule I include: 
heroin, LSD, peyote, methaqualone and Ecstasy.

In 2011 , Albuquerque Psychiatric Nurse Bryan Krumm sued the Gov. 
Susana Martinez administration after overruling the Medical Advisory 
Board decision to make all major depressive disorders eligible for 
the medicalcannabis program.

Kruum lost his case on appeal on Dec. 12 when the Tenth Circuit Court 
upheld the district court ruling that it lacked subject matter 
jurisdiction to decide the claim that marijuana is improperly classified.

Several cases of employment discrimination also have upheld the 
employer's right to f ire an employee, even those who are suggested 
to use legal medical marijuana with doctor's prescription.

Legal medical marijuana use protects the individual from criminal 
prosecution, but not from employer drug testing programs, denial of 
employment or promotional opportunities.

If you were taking a legally prescribed drug, you would most likely 
be protected by the Americans with Disabilities Act. Yet, this 
protection isn't extended to medical marijuana.

The use of marijuana still remains illegal in the federal courts, 
therefore, there is no protection under the ADA.

The 9th Circuit held that because Congress made it clear that the ADA 
def ines "illegal drug use" based strictly upon federal law, not 
state law, the ADA's exclusion of illegal drug users from its 
protections also excludes users of medical marijuana, even where the 
marijuana usage is permitted by state law.

Under the ADA, an applicant or employee who is currently engaging in 
the illegal use of drugs is not within the definition of a "qualified 
individual with a disability" and as a result receives no protection 
under the ADA when denied employment or employment is terminated 
because of medical marijuana use.

The ruling of the federal courts further affirms that applicants or 
employees will most likely not be able to assert successful claims 
for discrimination based on their disability or requests for 
accommodations using medical marijuana.

A reasonable accommodation is the modification or adjustment of the 
job application process, interviewing process or employment for a 
qualified person with a disability.

To qualify for a reasonable accommodation, the employee or job 
applicant must request it.

However even if the use of medical marijuana would provide relief 
from the effects of glaucoma, cancer, depression or other conditions 
the courts have held that a person's right to use marijuana for 
certain medical conditions doesn't extend to a right to an employer 
accommodation.

Similarly, the U.S. Supreme Court ruled 8-0 that claims of medical 
necessity for marijuana use were not supported by the Controlled 
Substances Act, even though California had approved such use in a 
1996 voter initiative.

The ADA prohibits discrimination against employees with disabilities. 
A disability is a physical or mental impairment that substantially 
limits a person's major life activities, including major bodily functions.

Since the ADA explicitly does not protect employees who use illegal 
drugs and federal law classifies marijuana as such, these 
contradictory "Catch-22" situations will continue until changes are 
made to the Controlled Substances Act.
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MAP posted-by: Jay Bergstrom