Since 1996, 16 states and the District of Columbia have enacted laws that allow certain medical uses of marijuana despite the federal prohibition against its use. In May 2011, Delaware became the most recent state to pass medical marijuana legislation. Under Delaware's law, qualifying patients will be referred to state-licensed and regulated “compassion centers,” which will be responsible for growing, cultivating, and dispensing the marijuana.

With the growing number of states that have enacted laws permitting the possession and use of marijuana for prescribed medical purposes, you may have received requests by current or prospective residents to allow their use of marijuana as a reasonable accommodation under federal or state nondiscrimination laws. According to a HUD Office of General Counsel legal opinion dated Jan. 20, 2011, public housing agencies and owners of federally assisted housing may not allow current or prospective residents to grow, use, possess, or distribute medical marijuana—even if state law allows them to do so. We'll cover the major points of the memorandum and explain why denying accommodation requests for marijuana use does not violate any fair housing or discrimination laws.

Eviction Not Required

The January 2011 legal memorandum reaffirmed the conclusions of a memorandum to the Assistant Secretaries of Housing and Public Housing, written by former HUD General Counsel Gay W. Laster on Feb. 24, 1999. The memo concludes that state laws legalizing medical marijuana conflict with the admission and termination standards of the Quality Housing and Work Responsibility Act of 1998 (QHWRA) and are preempted by federal law.

The QHWRA requires public housing authorities (PHAs) and owners to deny admission to households with a member who is illegally using a “controlled substance” as that term is defined by the Controlled Substances Act (CSA). However, under QHWRA's termination standards, PHAs and owners have the discretion to evict, or refrain from evicting, a current resident who the PHA or owner determines is using a controlled substance.

Elements Required to Prove Discrimination

The Fair Housing Act, Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act (ADA) prohibit discrimination against persons with disabilities in public housing and other federally assisted housing. One type of disability discrimination banned by these laws is the refusal to make reasonable accommodations in rules, policies, and practices when such accommodations are necessary to provide the person with disabilities with the full opportunity to enjoy a dwelling, service, program, or activity.

To establish discrimination for failure to accommodate a disability, a person must prove that:

• He or she meets the definition of having a “disability” or “handicap”;

• The accommodation is necessary to afford him or her an equal opportunity to use and enjoy the dwelling;

• The accommodation is reasonable; and

• The request for the accommodation was denied.

For the purposes of medical marijuana, the memorandum points out that a medical marijuana user does not fall within the definition of “disability” or “handicap” and an accommodation allowing the use of medical marijuana is not reasonable in the context of public housing or other federally assisted housing. Therefore, the elements of discrimination are not satisfied.

'Disability' Definition Not Satisfied

An individual must be disabled to be entitled to a reasonable accommodation. Although medical marijuana users may meet this standard because of the underlying medical conditions for which they need marijuana, Section 504 and the ADA exempt current illegal drug users from their definition of “disability.” Under these laws, whether a drug is “illegal” is determined by the CSA. And because the CSA prohibits all forms of marijuana use, the use of medical marijuana is “illegal” under federal law even if it is permitted under state law.

The courts have supported this interpretation of the ADA and Section 504. In one case, the court reject an ADA claim from a student with serious lower back problems who had requested an accommodation to use medical marijuana in a state university housing facility. The court noted that “a federal claim under the ADA does not exist because the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs when the covered entity acted on the basis of such use” [Barber v. Gonzales, July 2005].

In another case, a medical marijuana user requested an accommodation to a PHA's drug-free policy that would allow him to continue using and cultivating marijuana in his unit. The court concluded that although the resident had a “debilitating” back injury, “because he was an illegal drug user, the PHA had no duty to accommodate him” [Assenberg v. Anacortes Hous. Auth., May 2006].

Allowing Marijuana Use Not Reasonable

According to the memorandum, allowing marijuana use as an accommodation to a disability would require a fundamental alteration in the nature of the housing provider's operation. Accommodations that allow the use of medical marijuana would sanction violations of federal criminal law. Therefore, denial of this type of accommodation request is justified.

The memorandum further points out that allowing such an accommodation would thwart a central programmatic goal of providing a safe living environment free from illegal drug use. Since the inception of the public housing program, Congress and HUD have consistently maintained that one of the primary concerns of public housing and other assisted housing programs is to provide “decent, safe, and sanitary dwellings for families of low income.” In the public housing context, requiring owners and PHAs to alter their drug-free policies to allow residents with disabilities to use medical marijuana would be unreasonable because this would have the effect of mandating that they violate federal law.

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