Serving Clients with Disabilities and the ADA



5806440-737781Cannabis Legalization in Illinois and Disability RightsEquip For Equality?Protection and advocacy (P&A) system for theState of Illinois?Mission: Advance the human &civil rights of people with dis abilities in Illinois?Free legal assistancefor people with dis abilities about is s ues related to their dis ability?Legal teams: Civil Rights , Special Education, Abus e Inves tigationsVoice: 800.537.2632 TTY: 800.610.27792Employment Rights Helpline?For job seekers and employees with disabilities?Helpline s taff can:?Dis cus s employee rights under the ADA?Ans wer employment rights ques tions?As s is t with reas onable accom m odations?Help callers unders tand their options?Share fact s heets , s ample letters and forms?Give referrals and other as s is tance as neededVoice: 844.744.48 79TTY:800.610.2779employment employment@ 3Today’s SessionOverview of Relevant Laws?Americans with Dis abilities Act?Federal Fair Hous ing Act?Illinois Human Rights Act?Com pas s ionate Us e of Cannabis Program ActQues tions4Americans with Disabilities Act? Federal civil rights law? Title I: Employment? Title II: Public entities? Title III: Private bus ines s es? Does not apply to private, multi-family hous ing? Has non-dis crimination and m ore proactiverequirements – reas onableaccom m odations5Americans with Disabilities Act Who is protected?? Actual Disability? An individual who has an impairmentthat substantially limits a major life activity? Record of? Record of or history of an actual disability? Regarded As? Perceived to have an impairment? Association? Association with a person with a disability6Americans with Disabilities Act Who is not protected?? An individual who is currently engagingin the illegal use of drugs , when the covered entity acts on the basis of such use? Whether a s ubs tance is illegal depends on whether it is illegal as defined by the federal Controlled Subs tances Act (CSA).? CSA: Marijuana is an illegal controlled s ubs tance with no exception for medicinal us e? Result: Courts uniform ly hold that the ADA does not protect people who currently us e marijuana7What does currently engaging mean?If an individual fails a drug test, courts easily reachthe conclus ion that they are currently engaged in the us e of illegal drugs? See, e.g., Daniels v. City of Tam,p2a010 WL 1837796 (M.D. Fla. Apr. 12, 2010)(finding the plaintiff to be “currently engaged” in the illegal us e of drugswhen the plaintiff was involved in a vehicle accident and the required pos t-accidentdrug/ alcohol tes t was pos itive for cocaine)8What does currently engaging mean?More complicated question:?How long does an individual have to be drug -free to no longer be considered currently engaging in the illegal use of drugs??No categorical rules?Courts/EEOC: An applicant’s or employee’s drug use is current if it occurred recently enough to justify an employer’s reasonable belief that the individual’s involvement with drugs is an ongoing problem.9What does currently engaging mean?Suarez v. Penn. Hosp. of Univ. of Penn. Health Sys.2018 WL 6249711 (E.D. Pa. Nov. 29, 201)8?5.5 months after completing 29 days of intens ive inpatient treatment, nurs e was fired from her job?Employer: Drug us e was recent enough to jus tify belief that her us age was an ongoing problem?Court: Not currently engaging; covered by ADA?When nurs e was dis charged from treatmentprogram, it was recommended that s he return to the practice of nurs ing two weeks after the date of herreleas e; complied with monitoring contract10The ADA does apply in the following situations …?Individual successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal us e of drugs or hasotherwis e been rehabilitated s ucces s fully and is no longer engaging in s uch us e.?Individual is participating in a s upervis ed rehabilitation program and is no longer engaging in s uch us e?Individual is erroneous ly regarded as engaging in s uch us e, but is not engaging in s uch us e?Entity does not act on the bas is of drug-us e11The ADA does apply in the following situations …EEOC v. Pines of Clarkston2015 WL 1951945 (E.D. Mich. Apr. 29, 2015)?Employee with epilepsy who used medical marijuana was fired?Employer: Used illegal drugs – no ADA protections?Employee: Not true. Really fired due to epilepsy?Court: Jury could find reason was pretextual?Employee was “grilled about her epileps y” -told that “the pos ition would be too s tres s ful for her bas ed on her medical condition”12Does the ADA apply??John has a history of drug addiction, including cannabis. He participated in a drug rehabilitation program and has not used cannabis in nine months. He is not hired for a job because of concerns that he will begin using cannabis again.13Does the ADA apply??Jake previously smoked marijuana socially, but hasn’t done so in nine months. He is not hired for a job because of concerns that he will begin using cannabis again.14Does the ADA apply??Cynthia lives in Illinois. She has a medical marijuana card and uses marijuana in the evenings to treat her PTSD. She is given a job offer, but then fails a drug test based on her marijuana use.15Does the ADA apply??Jose spends significant timeoutside of his job with a group of co- workers. His friends all tested positive for marijuana. Jose’s boss sees him outside in the parking lot with these friends, concludes thathe also uses cannabis and fires him.16Does the ADA apply??Natalie’s son has had treatment for substance abuse in the past. Natalie is applying for new jobs and, after her prospective employer learnsthis information, Natalie is not hired.17Disability-Inquiries & Medical Exams? The ADA prohibits employers from certain disability- related inquiries and medical exams? Rules differ bas ed on s tage of employment? Pre-employment? Pos t-conditional job offer? Current employees? Tes ts for illegal us e of drugs are not medical exams s o can be conducted at any s tage of employment? Inquiries about drug us e? Current us e = OK under the ADA? Past use = Not OK if ques tions get at addiction18Public Entities & Private Businesses?Titles II and III do not prohibitdis crimination agains t current us ers of illegal drugs , except:?Public entities and places of publicaccommodation cannot deny s omeone acces s to health servicesor services connected with drug rehabilitationon the bas is of illegal drug us e19Federal Fair Housing Act?Disability does not include current, illegal use oraddiction to a control s ubs tance, as defined by CSA?Not a large body of cas e law about this definition or whether permitting medical marijuana is areas onable m odification?SeeForest City Residential Mgmt., Inc. ex rel. Plymouth Square Ltd. DividendHous. Ass'nv. Beasley, 71F. Supp.3d 715 (E.D. Mich. 2014) (Fair Hous ing Act did not require apartment manager to accommodatedis abled tenant’s medical marijuana us e in publiclyfunded hous ing).20State lawsIllinois Human Rights ActCompassionate Use of Medical Cannabis Program Act21Illinois Human Rights Act?Protects people from disparate treatmentand requires reas onable accommodations?Dis ability does not include an employeecurrently engaging in the illegal us e of drugs . 775 ILCS 2-104(C)(1).?An employer “may prohibit the illegal us e of drugs and the us e of alcohol at the work place by all employees .” 775 ILCS 5/ 2-104(C)(3)(a).?No publis hed cas es involving cannabis from s tate court (yet)22Recent case in the Illinois Human Rights CommissionIn the Matter of the Request for Review by: Craig Miller, Petitioner2020 WL 719967 (IHRC Feb. 11, 2020)?Employee failed drug test based on medical marijuana use; ultimately fired?Commission denied request for review?The Employer is within its rights to establish a zero-tolerance policy, medical marijuana prescription or not?Cited Compassionate Use Act23Hope for success in state court? Court decisions outside of IllinoisCallaghan v. Darlington Fabrics2017 WL 2321181(R.I. Super. May 23, 2017)?Applicant not hired due to medical marijuana use?Court: Stated a claim under Rhode Island anti - discrimination law?Employer should have engaged in the interactive process to determine if reasonable accommodations were available24Hope for success in state court? Court decisions outside of IllinoisBarbuto v. Advantage Sales and Marketing477 Mass. 456 (July 17, 2017)?Plaintiff with Crohn’s disease used medical marijuana legally, but denied employment after failing drug test?MA Supreme Court: Found for EE (reversed MTD)?Viable claim under MA anti -discrimination law?Rejected argument that medical marijuana use isper se unreas onable becaus e marijuana is a federal crime?Permitting off-s ite us e of medical marijuana may be reas onable or unreas onable (s afety, s tatutoryobligation, etc.)25Illinois Compassionate Use of Medical Cannabis Program ActAnti -dis crimination requirements :?No s chool, employer , or landlord may refus e to enroll or leas e to, or otherwis e penalize, a pers on s olely for his or her s tatus as a regis tered qualifying patient or a regis tered des ignated caregiver, unles s failing to do s o would put the s chool, employer, or landlord in violation of federal law or unles s failing to do s owould caus e it to los e a m onetary or licens ing-related benefit under federal law or rules . This doesnot prevent a landlord from prohibiting the s moking of cannabis on the premis es . 410 ILCS 130/40)(a)(1)26Illinois Compassionate Use of Medical Cannabis Program ActBut employers are expressly permittedto:?Enforce a policy concerning drug tes ting, zero- tolerance, or a drug free workplace if the policy is applied equally to everyone?Dis cipline for violating a workplace drug policy?Dis cipline for failing a drug tes t, if failing to dis cipline would res ult in the employer violating federal law orcaus e it to los e a federal contract or funding Unclear if there is a private right of action410 ILCS 130/5027Hope from other states? State medical marijuana lawsWhitmire v. Wal-Mart Stores, Inc.359 F.Supp.3d 761 (D. Ariz. 2019)?Customer Service Supervisor held a medical marijuana card to treat chronic pain?Given drug test after workplace accident?Tested positive & fired?Claims under state laws, includingArizona Medical Marijuana Act?AMMA prohibits employment discrimination?Exception if employee uses, possesses, or is impaired on employer’s premises or during workhours28Whitmire continued? AZ law: Impairment can’t be based only on presence of metabolites of marijuana in ins ufficient concentration to caus e impairment? Here, no expert tes timony about concentration level? Wal-Mart m oved for s ummary judgment – good faith belief of impairment? Court: Granted s ummary judgment to employee sua sponte? Firing a regis tered qualifying patient who tes tspos itive regardles s of marijuana concentration is a bright line dis regard of s tate law? Tes t its elf ins ufficient without expert tes timony29Court decisions outside of IllinoisCallaghan v. Darlington Fabrics2017 WL 2321181(R.I. Super. May 23, 2017)?Applicant also brought a claim that employer violated state medical marijuana law?Court: Granted summary judgment to employee?Implied right of action?Discrimination on the basis of“s tatus ” of amedical marijuana card holder protected us e, too?No is s ue of preemption – laws have different purpos es30Other state medical marijuana lawsSome courts have held that state medical marijuanalaws are not preempted by the ADA or the CSA?Chance v. Kraft Heinz Food, s2018 WL 6655670 (Del.Super. Ct. Dec. 17, 2018)(finding Delaware s tate law had a private right of action and was not preempted)? Noffsinger v. SSC Niantic Operating Co. LL2C7,3 F.Supp.3d 326 (D. Conn. 2017) (after job offer res cinded for applicant with PTSD due to medmarijuana, court found the ADA does not preempt s tate medical marijuana law)31Pro-employer decisions?Garcia v. Tractor Supply C.o, 154 F.Supp.3d 1225 (D.N.M. 2016): New Mexico’s medical marijuana and civil rights laws do not require an employer to accommodate medical marijuana?Curry v. MillerCoors,2013 WL 4494307 ( D.Colo. Aug.21, 2013): “[D]is charging an employee under thes e circums tances is lawful, regardles s of whether the employee cons umed marijuana on a medicalrecom mendation, at hom e or off work ”32Pro-employer decisions?Roe v. TeleTech Customer CaMregmt (Colorado) LLC, 171 Wash. 2d 736 (2011:)Washington law “does not … protect anemployee from being dis charged becaus e of authorized medical marijuana us e”?Casiasv. Wal-Mart Stores, 764 F.Supp.2d 914 (W.D. Mich. 2011): Michigan law “does not regulate private employment”33Take-aways and Resources?Important to educate cannabis-us ers about what law does – and does not – do?Advocate for s tronger anti-dis crimination protections at the federal and s tate level?ADA Legal Brief and Webinar: Drugs , Alcohol and Conduct Rules (EFE, Jan. 2020)?acces s ada- legal/archives /110778?EFE Fact Sheet: Cannabis / Marijuana in theWorkplace: marijuana/34Questions?Barry C. Taylorbarryt@ 312.895.7317Rachel M. Weisberg rachelw@ 312.895.731935 ................
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