I recently attended a webinar taught by an attorney, Monika Taliaferro called “Medical Marijuana and the ADA: Hashing Out How States and Employers Cope with Medical Marijuana” from the Mid-West ADA Center. The webinar focused on employment but also defines the relationship that this act has with cannabis in general as it applies to housing, social services, and medical needs.
What is the ADA or American with Disabilities Act? It is a Federal Civil Rights Law enacted 30 years ago to end discrimination against people with disabilities. This includes things like jobs, housing, schooling, and healthcare and to allow disabled people (PWD) to fully participate and have a higher quality in “normal” life. It also defines what a disability is and who should receive benefits from the government based upon this definition. It is not the first attempt at a disability law, but it does something radically different in regard to drugs.
Section 504 of the Rehabilitation Act of 1972 also gave a federal definition of a disability to provide better or more equal access to basically the same things as the ADA with one important exception: substance use or abuse fell under this definition giving drug users access to social services, housing and healthcare. It made the Government very angry that “people are getting paid to do drugs” and they did not want to make this mistake again in drafting new Federal regulations for disability services. This is why the ADA DOES NOT PROTECT MEDICAL CANNABIS USERS.
There are many instances of the ADA deferring its reach as to not interfere with State laws and in many cases of drugs they prefer these laws on record so as to let localities determine how to deal with the social issues that would clog up higher and more important court issues. This gave rise to medical marijuana and an affirmative medical defense which might hold up in a State court, but in no way affects the Federal position on marijuana and many other Scheduled drugs which is that they are strictly illegal. Until a change happens at a Federal level the ADA will continue to not be an affirmative defense.
And clearly there are more progressive places like Oregon that not only has medical and recreational cannabis but just voted to legalize psilocybin for psychological issues and to treat minor drug offenses as a civil fine worthy of rehabilitation instead of jail time and space. Places with laws like this will set the precedent for the way drug laws can and will change at the federal level in the future and then and only then will the ADA follow. But there are some significant problems in the interim.
The lack of social consumption spaces and or the ability to use cannabis medicine in apartment housing has been a big driving force in my advocacy efforts to educate the medical field on the medical benefits (CPPNW), which then inform politicians who make the state laws which cover my use with an affirmative medical defense. Last year I went before a committee at the Capitol as well as on the evening news in support of a bill that would have created consumption spaces and allowed it in housing as well.
Although that bill did not ultimately pass it did encourage Oregon State Governor Kate Brown to declare and write into law that tenants could not be evicted out of apartments for cannabis use, which is a huge victory. In light of COVID-19 19, social consumption spaces need rethinking to maximize safety to an heightened at risk population, while currently being able to medicate in the space of one’s own apartment is the best possible outcome. I will continue to actively seek change in the ADA until it happens, but this is the current state of affairs.
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