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Why Medical Marijuana is not a Reasonable Accommodation

by Published On: May 13, 2011
HUD

In its January 2011 memorandum, the U.S. Department of Housing and Urban Development (HUD) stated that federal and state nondiscrimination laws do not require Public Housing Authorities (PHA) or owners of other federally assisted housing to accommodate requests by current or prospective residents with disabilities to use medical marijuana.

While PHAs and owners may not grant reasonable accommodation requests for medical marijuana, they do maintain the discretion to either evict or refrain from evicting current residents who engage in such use as set forth in the Quality Housing and Work and Responsibility Act of 1998 (QHWRA). The memo reaffirms and expands on a 1999 General Counsel memorandum addressing the tenancy of medical marijuana users.

The memo also reviews and analyzes the following:

  1. The history of state medical marijuana laws and the admission and termination standards under QHWRA.
  2. The federal nondiscrimination laws applicable to housing providers (Americans with Disabilities Act (ADA), Fair Housing Act, and Section 504 of the Rehabilitation Act (Section 504).
  3. The probable federal law preemption of any state nondiscrimination laws that would purport to allow the reasonable accommodation of medical marijuana use.

Medical Marijuana and Admission and Termination Standards under QHWRA

Under federal law, marijuana is categorized as a Schedule I substance under the Controlled Substances Act (CSA) and the manufacture, distribution or possession of marijuana is a criminal offense. Since 1996, fifteen states and the District of Columbia have enacted laws that allow medical use of marijuana under certain proscribed conditions. Although the state laws vary, they generally protect users from state criminal laws by exempting users who grow, possess, and/or use marijuana in conjunction with a physician’s certification or recommendation.

QHWRA Section 576(b) addresses admissions standards related to current illegal drugs use for all public and other federally assisted housing. This section requires PHAs and owners to deny admission to those households with a member who the PHA or owner determines, at the time of admission, is illegally using a controlled substance.

Under the QHWRA’s termination standards, however, PHAs and owners have the discretion to evict or refrain from evicting a current tenant who is illegally using a controlled substance. Thus, PHAs and other owners must deny admission to illegal drug users (including medical marijuana), but they are not required to evict current illegal drug users.

Federal Nondiscrimination Laws Do Not Require PHAs to Allow Marijuana Use as a Reasonable Accommodation

The Fair Housing Act, Section 504, and the ADA prohibit discrimination against persons with disabilities in public housing and other federally assisted housing. One type of discrimination prohibit by all three statutes is the refusal to make a reasonable accommodation in rules, policies, and practices when such accommodations are necessary to provide persons with disabilities the full opportunity to enjoy a dwelling, service, activity, or program.

To establish discrimination for failure to accommodate a disability, a plaintiff must prove these elements:

  1. The plaintiff meets the statute’s definition of “disability” or “handicap.”
  2. The accommodation is necessary to afford him or her an equal opportunity to use and enjoy the dwelling (Fair Housing Act) or necessary to avoid discrimination in a public service , activity, or program (Section 504 and ADA).
  3. The plaintiff actually requests an accommodation.
  4. The accommodation is reasonable.
  5. The defendant refuses the required accommodation. The first and fourth elements are the relevant elements analyzed in the January 2011 HUD Memorandum - whether a medical marijuana user falls within the definition of disability and whether the use of medical marijuana is a reasonable accommodation.

The analysis for Section 504 and the ADA differs slightly from the Fair Housing Act. Under Section 504 and the ADA, medical marijuana users are not considered “disabled” or “handicapped,” while under the Fair Housing Act allowing the use of medical marijuana is not a reasonable accommodation.

Section 504 and the ADA

Under Section 504 and the ADA, current illegal drug users (including medical marijuana users) are excluded from the definition of “individual with a disability” when a provider acts on the basis of illegal drug use. Section 504 and the ADA determine whether a drug is “illegal” by looking exclusively at the CSA. The CSA prohibits all forms of marijuana, so the use of medical marijuana is illegal under federal law even if it is allowed under state law.

In Section 504 and the ADA, the exclusion of “current illegal drug users” applies to medical marijuana users only when PHAs or owners are acting on the basis of that current use.So, if a housing provider evicts a tenant based on their illegal drug activity violating their drug-free policy, the tenant is not “disabled” under Section 504 or the ADA, even though they may have a disability that otherwise would be classified as a disability, such as cancer or multiple sclerosis.

Fair Housing Act

Unlike Section 504 and the ADA, the Fair Housing Act does not categorically exclude medical marijuana users from the definition of “handicap.” It prevents current illegal drug users from asserting that the drug use is itself the basis for claiming that he or she is disabled under the Fair Housing Act. But, a person who is otherwise disabled (cancer, multiple sclerosis, etc.) is not disqualified from the definition of “handicap” merely because the person is also a user of marijuana. Therefore, under the Fair Housing Act, the analysis turns on whether accommodating such use is reasonable.

An accommodation may be denied as not reasonable if either granting the accommodation would require a fundamental alteration in the nature of the housing provider’s operations or the requested accommodation imposes an undue financial and administrative burdenon the housing provider. The January 2011 HUD Memorandum concludes accommodations that allow the use of medical marijuana would sanction violations of federal criminal law and thus constitute a fundamental alteration in the nature of the housing operation.

The January 2011 Memorandum further notes that although PHAs and owners are “not charged with enforcing federal criminal laws, requiring them to condone violation of those laws would undermine a PHA or owner’s operations.” Moreover, allowing other marijuana-related conduct, such as manufacture, possession and distribution is prohibited by the CSA, so that activity is not deemed reasonable either.

Federal Laws Would Likely Preempt State Nondiscrimination Laws That Would Allow PHAs and Owners to Permit Medical Marijuana Use as a Reasonable Accommodation

In the final section of the January 2011 Memorandum, HUD expresses that it is unlikely that state nondiscrimination laws would be interpreted to require PHAs and owners to permit the use of federally-prohibited drugs. And, any such interpretation of state laws would be subject to preemption by the federal laws governing drug use in public housing and by the CSA. Such preemption would be under the legal doctrine of implied conflict preemption because the federal laws governing public housing and federally assisted housing do not expressly state an intention to preempt state law.

Conclusion

PHAs and owners may not grant reasonable accommodations that would allow tenants to grow, use, otherwise possess, or distribute medical marijuana. In addition, PHAs and owners must deny admission to applicant households with persons, at the time of consideration for admission, using medical marijuana.

As to current residents, PHAs and owners have statutorily-authorized discretion with respect to evicting or refraining from evicting them on account of their use of medical marijuana. If a PHA or owner decides to allow a current resident using medical marijuana to remain an occupant, the PHA or owner must do so as an exercise of their discretion under the QHWRA, not as a reasonable accommodation.

 



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