Must You Make Reasonable Accommodations for Legalized Medical Marijuana?

Follow 11 rules for handling requests for medical marijuana use.

 

 

Almost every state in the union and the District of Columbia have passed legislation legalizing the use of marijuana prescribed by a physician to persons ages 21 or older for medicinal purposes. Non-medical, recreational use marijuana is also legal in 22 states and the District of Columbia. Like most landlords, you may be concerned about these developments. Don’t panic. Marijuana legalization doesn’t mean you have to suddenly drop your historic anti-drug policies and start tolerating pot use at your community. However, it could have an impact on your fair housing duties.

Explanation: Fair housing laws require landlords to make reasonable accommodations for persons with disabilities. Just about all of the medical conditions that legal marijuana treats are considered “disabilities” under the law. Accordingly, a rental applicant or tenant who legally uses medical marijuana may request that you waive your anti-drug policies as a reasonable accommodation.

This month’s lesson will help you determine whether and under what conditions you must accept such requests. In addition to fair housing laws, we’ll explain the complicated and often misunderstood interaction between the federal ban on marijuana and state laws purporting to legalize its use. Then we’ll help you apply the laws to real-life operations by outlining 11 rules to follow when processing reasonable accommodations requests for medical marijuana use. At the end of the lesson, you can take the Coach’s Quiz to evaluate how well you’ve learned the material. 

WHAT DOES THE LAW SAY?

Federal FHA & the Duty to Make Reasonable Accommodations

Section 3604(f)(1)(B) of the federal Fair Housing Act (FHA) bans discrimination against rental applicants and tenants (which we’ll refer to collectively as “tenants” unless the context requires otherwise) because of their disability. It’s also illegal (under Section 3604(f)(3)(B)) to refuse “to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”

As noted above, most individuals who are authorized to use medical marijuana qualify as being disabled under the law. However, the FHA (Section 3602(h)) also states that a “handicap” “does not include current, illegal use of or addiction to a controlled substance” as defined in another federal law called the Controlled Substances Act (CSA).

Coach’s Tip: Other federal laws designed to prevent disability discrimination, including the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, also exclude use of illegal drugs from the definition of disabilities the law protects. For example, a Washington federal court ruled that a student who used medical marijuana to treat a serious lower back problem didn’t have a valid ADA claim against a university housing provider because the user of an illegal drug isn’t a “person with a disability” under the law [Barber v. Gonzales, 2005 WL 16007189 (E.D. Wash. July 1, 2005)]. 

The CSA, State Laws & the Myth of “Legalized Marijuana”

Of course, the FHA exclusion of “illegal” drug use from the definition of “handicap” doesn’t apply if the marijuana the tenant uses is legal under state law. Right? Wrong.

The truth is that “legal marijuana” is an oxymoron. Marijuana is illegal in all parts of the country, including states that have passed legislation purporting to legalize it in within their own borders. The CSA lists marijuana as a Schedule I substance subject to the strictest regulation due to its deemed high potential for abuse and current absence of Food and Drug Administration accepted medical treatment uses. The manufacture, distribution or possession of marijuana is a federal criminal offense.

This is true even in states that have legalized marijuana. That’s because federal law supersedes state law. So, if it wants to, the U.S. Department of Justice (DOJ) can prosecute individuals and entities for engaging in marijuana activities that state laws expressly permit. The agency’s current policy is to tolerate these activities as long as the state takes effective action to look after federal interests such as by ensuring that the marijuana they produce doesn’t fund terrorist organizations or end up going to kids or neighboring states.

Medical Marijuana Accommodations Not Allowed at Federally Assisted Properties

Federal public housing authorities and federally assisted properties don’t have to accommodate legal medical marijuana; in fact, they’re not allowed to do so even if they want to. Explanation: Section 577 of the federal Quality Housing and Work Responsibility Act of 1988 (QHWRA) requires owners of federally assisted housing to deny admission to any household with a member that the owner determines is currently using illegal drugs at the time of the application—or, the owner chooses, seek eviction if the household is a current tenant.

In addition, HUD issued a 2011 memo expressly stating that requests to permit use of medical marijuana in federal public and assisted housing are not reasonable under the FHA because they would require a fundamental alteration of the nature of the housing provider’s operation. Accommodating use of medical marijuana would require public housing agencies and owners to condone violations of federal criminal law and thwart a central programmatic goal of providing a safe living environment free from illegal drug use, according to HUD. Courts have also applied these principles in actual cases.

Example: In 2014, a Michigan federal court ruled that a state law legalizing medical marijuana didn’t bar a federally assisted housing community from evicting a tenant for using medical marijuana prescribed by her doctor for multiple sclerosis. While the use might have been legal under Michigan laws, it was still illegal under federal law. As a result, the community didn’t have to allow her medical marijuana use as a reasonable accommodation under the FHA. To rule otherwise would require the community to violate federal law, the court reasoned—although it left the question of whether this tenant deserved to be evicted for the state courts to decide [Forest City Residential Management Inc. v. Beasley, Dec. 3, 2014].

Legal Medical Marijuana Accommodations at Conventional Properties

So, where does this leave us? Answer: Even though marijuana is illegal in all parts of the country, you may still have to make reasonable accommodations for medical marijuana if your multifamily housing property:

• Is a conventional one—that is, not a federal public housing agency or federally assisted property; and
• Is located in one of the 44 states and the District of Columbia that have adopted laws legalizing medical marijuana—that is, in a state other than Idaho, Kansas, Nebraska, North Carolina, and Wyoming where medical marijuana remains illegal.

11 RULES FOR ACCOMMODATING MEDICAL MARIJUANA

The law governing medical marijuana accommodations at conventional properties is rapidly evolving and highly unsettled, especially given the lack of case law addressing the issues. That’s why it’s essential to seek the counsel of an attorney with experience and knowledge of the marijuana laws of your state.

Even with these caveats in mind, however, we can discern some basic ground rules governing the accommodation of medical marijuana based on guidance from HUD, court cases involving public and federally assisted housing, and the actual provisions of state and municipal (which we’ll refer to collectively as “state”) marijuana legalization legislation. The good news is that risk of liability for failing to accommodate medical marijuana is very limited and easily controlled. Specifically, there are 11 things you can do to protect yourself.

Rule #1: Adopt Reasonable Ban on Marijuana Use

The starting point is to adopt clear policies banning marijuana use at your property, whether legal or illegal. Nobody would deny that landlords have a legitimate interest in policing their communities and protecting their tenants against the dangers posed by marijuana and other drug use, whether legal or illegal. The challenge is to ensure that your policies, practices, and procedures are not only necessary to accomplish those purposes but also reasonable and nondiscriminatory.

Compliance Pointer: Our Model Policy for public housing authorities is a workable template. However, you’ll probably have to remove the language barring reasonable accommodations and indicate in your policy that you will make reasonable accommodations for persons with disabilities in accordance with the provisions of your state’s law. Again, speak to your attorney about what your state requires.

MODEL POLICY

Adopt Medical Marijuana Use Policy

Here’s a template medical marijuana policy for a federal public housing authority based on the one used by Sacramento Housing and Redevelopment Agency. Ask your attorney to adapt it for use at your own property.

MEDICAL MARIJUANA USE POLICY

While possession of medical marijuana is no longer a crime under [State] law (with the proper permit), its possession is still illegal under federal law. When a state law is in conflict with a federal law, the federal law prevails.

Landlord utilizes leases that prohibit any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants. Furthermore, any drug-related criminal activity on or off such premises, engaged in by a tenant, any member of the tenant’s household or any guest or other person under the tenant’s control, shall be cause for termination of tenancy. The possession, use, cultivation, growing, sale, barter, purchase, or exchange of marijuana is a serious violation of the lease between the Landlord and tenant.

Admissions: All forms of marijuana use, including the use of “medical marijuana” are illegal under federal law even if it is permitted under state law. Landlord will deny admission to any household with a member who is, at the time of application for admission, illegally using a controlled substance as that term is defined by the federal Controlled Substance Act (CSA).

Reasonable Accommodation: Landlord will not grant a tenant’s request to use and/or possess medical marijuana as a reasonable accommodation, as it would not be reasonable for Landlord to allow a tenant with disabilities to violate the law as a reasonable accommodation. As such, the Landlord will not tolerate illegal drug use in or on its residential units or allow Housing Choice Voucher (HCV) participants to engage in such illegal drug units on or around their assisted units.

Rule #2: Check Your State Medical Marijuana Law for Landlord Exceptions

In terms of accommodation, the starting point is to check the actual laws of your state for any exceptions that may get you off the hook. Explanation: Most states that have legalized medical marijuana make exceptions for certain kinds of undesirable uses. For example, state laws typically include language clarifying that employers are still allowed to enforce workplace drug testing policies and don’t have to allow employees to perform their job while impaired. Several other states allow for restricting medical marijuana use at a school or public place. Six states make carve-outs specifically for landlords:

• In Maine and Montana, the law states that landlords aren’t barred from restricting use or growing of marijuana on the premises;
• Arkansas, Illinois, and Maryland allow landlords to ban consumption by smoking in a leased property; and
• Hawaii has a similar rule allowing for a smoking ban, albeit only for condo communities that also ban tobacco smoking. 

Rule #3: Promptly Respond to All Accommodation Requests

If a tenant does seek accommodation for medical marijuana, don’t ignore the request no matter how baseless and frivolous you think it is. While there’s no specific deadline, guidelines from HUD and the DOJ clarify that landlords must provide a “prompt response” to a reasonable accommodation request. “An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation,” according to the guidelines.

Rule #4: Accommodate Only Medical & Not Recreational Marijuana

To the extent they exist, a tenant’s right to accommodation for legal marijuana applies only to medical marijuana. You never have to accommodate recreational marijuana use. This lesson may come in handy if you’re in one of the 20+ states that have legalized both recreational and medical marijuana, including Alaska, Arizona, California, Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, Virginia, and Washington.

Rule #5: Require Tenants to Present a Valid Medical Marijuana Card

Patients must register with and receive an official card from the state to participate in the state’s medical marijuana program. So, ask tenants who request accommodations to use legal medical marijuana to produce a valid card. Newly approved tenants may produce a temporary certificate allowing them to participate until they receive their official card. In either case, verify that the tenant is the actual person named in the instrument and that it hasn’t yet expired.

Rule #6: Require Tenants to Produce a Valid Medical Marijuana Prescription

Under general fair housing rules, landlords are allowed to ask for reasonable verification of a requestor’s disability (at least to the extent that it’s not apparent or self-evident) and need for the accommodation. In the context of medical marijuana use, that verification is a valid prescription/authorization from a physician for the particular use. Verify that the requested medical marijuana use meets the limitations of your own state’s law, namely that:

• The form of marijuana the tenant proposes to use is permitted by your state’s law—for example, you don’t have to accommodate smoking or vaping if you’re in Indiana, Kentucky, Tennessee, Texas, Wisconsin, where the only form of legalized medical marijuana is cannabidiol oils (CBD);
•  The physician is legally authorized to prescribe or authorize medical marijuana use in your state; and
• The prescription is for a medical condition that the law lists as a “qualifying condition” that can be legally treated with medical marijuana. While rules vary by state, qualifying conditions typically include cancer, glaucoma, AIDS, hepatitis C, post-traumatic stress disorder (PTSD), anxiety, chronic pain, inflammatory bowel disease, epileptic seizures, arthritis, multiple sclerosis, Parkinson’s, and migraines.

Rule #7: Determine If Requested Medical Marijuana Use Is Reasonable

You need only grant a requested accommodation if it’s reasonable. According to HUD, a request for an accommodation is reasonable if it:

• Doesn’t cause landlords to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available;
• Won’t cause harm or damage to others; and
• Isn’t technologically possible.

As we noted above, accommodation requests for medical marijuana are categorically unreasonable under the second prong when the property is a federal public housing authority or federally assisted. One or more of these grounds for denial might also be in play at conventional properties, as we’ll explain below.

Rule #8: Impose Reasonable Limitations on Permitted Medical Marijuana Use

You have every right to require tenants that you do allow to use medical marijuana to follow all applicable laws and community policies, including by:

• Using marijuana only for the prescribed medical purpose;
• Using marijuana within their own apartment and not in common areas;
• Not possessing or cultivating more than the maximum amount the law permits; and
• Not selling, sharing, or distributing their marijuana to anybody else.

Rule #9: Stick to Your Smoke-Free Policy but Explore Smoke-Free Alternatives

If you don’t tolerate tobacco smoke, you don’t have to tolerate marijuana smoke. Attorneys suggest that allowing tenants to smoke medically prescribed marijuana on the premises would likely not be deemed a reasonable accommodation if your property is a non-smoking community. “A strong case could be made that such an accommodation would fundamentally alter the property’s operations,” according to a California fair housing lawyer.

Secondhand smoke from marijuana use may also endanger the health of other tenants, especially those with allergies or chemical sensitivities to smoke. This is true even if tenants smoke only within their own apartments. According to one study, even in multi-unit buildings with strictly enforced smoke-free policies, 50 percent of tenants experienced smoke entering their apartment from adjacent units.

Strategic Pointer: Even if you don’t have to allow smoking, you must explore the possibility of alternative accommodations allowing tenants to use legal medical marijuana. For example, maybe tenants can ingest the marijuana they need in the form of edibles, pills, powder, topicals, or tinctures.

DEEP DIVE

The Harms of Secondhand Marijuana Smoke

As with tobacco, the burning or vaping of marijuana produces carcinogens, irritants, and toxins, including many of the chemicals and fine inhalable particulates found in tobacco smoke. Accordingly, exposure to marijuana smoke can cause coughing, phlegm, wheezing, and other respiratory symptoms while aggravating health problems such as asthma, bronchitis, and chronic obstructive pulmonary disease. Studies also show that exposure to secondhand marijuana smoke increases the risk of coronary heart disease and stroke. In some cases, inhaling secondhand smoke can increase the concentrations of THC (the ingredient that produces the marijuana buzz) in the non-user’s blood serum and urine. Result: The non-user may get high and be at greater risk of failing a marijuana test.

Rule #10: Don’t Accommodate Unreasonable Medical Marijuana Cultivation

Some states, including Colorado, Maine, and Montana take the position that allowing tenants to cultivate marijuana in their apartment is not a reasonable accommodation even if they’re growing it solely for their own legal medical use. Explanation: Growing even small amounts of marijuana may require extensive use of water and electricity, which drives up a landlord’s costs while increasing the risk of fire, electrical blowouts, explosions, and mold.

Rule #11: Don’t Retaliate Against Tenants for Requesting Medical Marijuana Accommodations

You can’t evict, reject, or take any other adverse action against any person for requesting reasonable accommodations. You can be liable even if retaliation is just one motive for a decision—for example, evicting a tenant for not paying rent and requesting accommodation for medical marijuana use.

Takeaway & Caveat

To sum up, you don’t have to accommodate use of marijuana if:

[  ] Your property is federal public housing or federally assisted;

[  ] Your state hasn’t legalized medical marijuana;

[  ] The tenant wants to use marijuana for recreational, rather than medical purposes;

[  ] Your state has legalized medical marijuana but makes exceptions allowing landlords to bar medical marijuana use at multifamily housing properties;

[  ] The tenant seeking accommodations doesn’t have a valid medical marijuana card from your state;

[  ] The tenant doesn’t have a valid prescription for medical marijuana;

[  ] The tenant’s proposed medical use isn’t permissible under the medical marijuana laws of your state; and/or

[  ] The requested medical marijuana accommodation is unreasonable.