Ms H was admitted to a nursing program at her local college. As part of the nursing program, Ms H was told that she must successfully complete a series of nursing courses featuring both classwork and clinical training. She also was told that students in the program were required to submit to a urine drug screening test on a yearly basis and any student who tested positive would be removed from the program.

When Ms H heard about the drug testing, she became concerned. Her clinician recommended medical cannabis to mitigate her symptoms of irritable bowel syndrome (IBS) and posttraumatic stress disorder (PTSD), and she has been using it regularly. Ms H informed the director of nursing at the college about her medical condition and requested that she be permitted to continue to use medical marijuana, which has been legalized in her state.

The director informed Ms H that use of medical cannabis was not permitted, saying, “You must comply with the school’s drug policy in order to stay in the program.” The director also noted that the school would be in violation of its contracts with various clinics if it allowed students to use marijuana. Ms H was informed that she would have to take a urine drug test in 90 days.

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Instead of submitting for a drug screen, Ms H sought counsel from an attorney and filed a discrimination complaint against the school with the state’s Human Relations Commission.

The complaint alleged that Ms H has a medical disability (IBS and PTSD) but that she is able to complete the school’s nursing program as long as she is granted the reasonable accommodation of being permitted to take her legally obtained medical cannabis. The complaint claimed that the school was violating the state’s Fair Education Opportunities Act (FEOA) by denying Ms H reasonable accommodation for her disability.

The school made a motion to dismiss, but the Commission denied it. The Commission reasoned that Ms H’s use of cannabis to mitigate her symptoms made the claim viable under the state’s medical marijuana act, in combination with the FEOA and the state’s Human Relations Act (HRA). The school appealed, and the case went to an appellate court.

The Court’s Decision

The court held that the only issue on appeal was whether antidiscrimination provisions of the FEOA and HRA require accommodation of Ms H’s lawful use of medical marijuana under the state’s medical marijuana act. Both the FEOA and the HRA require that employers and schools make reasonable accommodations for qualified individuals with disabilities. Employers must make reasonable accommodations so that employees can carry out their job functions. In the case of schools, institutions of higher education must provide equal access to the school’s programs and activities to those with disabilities.

The school, while admitting that the laws require reasonable accommodations to qualified disabled students, argued that individuals who currently and illegally use controlled substances, including marijuana, are exempt from the disability definitions under both the FEOA and the state’s HRA. The school pointed out that both statutes use the Federal Controlled Substances Act (CSA) definition of controlled substances, which defines marijuana as a Schedule I controlled substance, meaning it has no medically acceptable use under federal law.

The school also noted that although the state’s medical marijuana act legalized use of the drug for certain purposes, it did not amend the FEAO or HRA definition of illegal use of controlled substances — both statutes continue to rely on the federal definition.

Ultimately, the court sided with the school. It held that the medical marijuana act did not require an accommodation for medical marijuana use — but rather the act prohibits discrimination based on a person’s status as a medical marijuana patient. The court held that the medical marijuana act expressly provides “that employers are not required to provide an accommodation to employees on their premises, nor are employers prohibited from disciplining employees who are under the influence of medical marijuana on work premises.”

“While an employer cannot discriminate on the basis of an employee’s status as a certified medical marijuana user, an employer is not required to make any accommodation for the use of medical marijuana on its property or the premises of any place of employment,” according to the state’s medical marijuana act.

The court concluded that the college was under no obligation to accommodate Ms H’s use of medical marijuana. It pointed out that after the state passed its medical marijuana act, its General Assembly chose not to amend the state’s FEOA or HRA to remove the Federal CSA language prohibiting use of Schedule I drugs, including medical marijuana. Because the medical marijuana act did not change or remove the reference to the Federal CSA, the court found that Ms H’s medical marijuana use was still “illegal” under the state’s FEOA and HRA. The court thus held that Ms H was not entitled to an accommodation from the school for her medical marijuana use, and the case was dismissed.

In a separate opinion, a judge called on the state legislature to remove the Federal CSA wording. “The conflict among these statutes has created an absurd result in requiring … citizens to choose the benefits of medical marijuana or the protections of the HRA and the FEOA,” she wrote. “This quagmire for individuals whose physicians have [recommended] medical marijuana for their use as authorized by the medical marijuana act, but who are then precluded from using the same because of the risk to their employment and education since such use is still illegal under the law, is an untenable position.”

Protecting Yourself

The juxtaposition of state and federal law differing on whether marijuana is a Schedule I drug is surely coming to a head as over 33 states and the District of Columbia have medical marijuana programs.

Editor’s Note: On December 4, 2020, the US House of Representatives voted 228-164 to pass a bill that would decriminalize marijuana and expunge nonviolent marijuana-related convictions. The legislation, known as the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, does not legalize marijuana at the federal level, but would remove cannabis from the Drug Enforcement Administration’s Schedule I drug classification. The Senate has yet to take up the bill.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.