In-House Counsel, Marijuana

Medical Marijuana as a Reasonable Accommodation Because of a Disability? One Court Says No.

In an age when more states continue to decriminalize use of small amounts of marijuana, apartment management employees are getting a more common request: can medical marijuana be a reasonable accommodation because of a disability?

By Scott M. Badami of Fox Rothschild  
on

Ed note: This post originally appeared on Fox Rothschild’s Fair Housing Defense.

In an age when more states continue to decriminalize use of small amounts of marijuana, apartment management employees are getting a more common request: can medical marijuana be a reasonable accommodation because of a disability? Earlier this month, a federal district court answered that question with a resounding no. In a case from Michigan involving an affordable housing community (Michigan permits medical marijuana pursuant to the state’s Medical Marijuana Act), a U.S. District Court judge ruled that because marijuana is still classified as a controlled substance under federal law (in other words, use of marijuana is still against federal law), the resident is not entitled to a reasonable accommodation for medical marijuana use under the Fair Housing Act (“FHA”).

In so ruling, the judge reviewed applicable state and federal law as well as guidance from the U.S. Department of Housing and Urban Development (“HUD”) written in 2011 in which HUD concluded that persons using illegal drugs (including medical marijuana) are categorically disqualified from relief pursuant to the FHA, Section 504 of the Rehabilitation Act of 1973 and/or the Americans with Disabilities Act as the requested accommodation was not reasonable and would constitute a fundamental alteration in the nature of the housing operations.

This decision will certainly not be the last word on this subject, but it is important guidance for apartment management that I wanted to pass along. If you or your apartment community feels stuck in the weeds (pun intended) on an issue like this, you may need to speak with a lawyer like me.

Just a thought.

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