Weekly Training Tip: Marijuana Reasonable Accommodations Under the FHA

Grace Hill Training Tip of the Week

Marijuana and Reasonable Accommodations Under the FHA

Marijuana use is on the rise across the United States. Thirty states and the District of Columbia have legalized marijuana use for medicinal or recreational purposes. This means you will likely have residents who request an accommodation to standard policies that prohibit drug use on your property.

The question is, are you required to make this kind of accommodation?

If a resident is using marijuana for a medical condition, that condition may qualify as a disability that could entitle them to an accommodation of some kind. Under the Fair Housing Act (FHA), it is illegal to refuse to make a reasonable accommodation in rules, policies or services when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling. An accommodation is reasonable under the FHA if it does not cause undue hardship, fiscal or administrative burdens on the property management company, or does not undermine the basic purpose that the policy seeks to achieve.

If a resident has a disability and indicates that using marijuana in their home is related to that disability, they could request a “reasonable accommodation” under the FHA. Note that physicians in the United States are not actually permitted to prescribe marijuana, although they can recommend its use for their patients to treat various medical conditions.

The U.S. Drug Enforcement Agency (DEA) classifies marijuana as a Schedule I Controlled Substance, which recognizes no medical use. Ultimately, an accommodation that allows conduct in violation of a federal law likely constitutes an “undue administrative burden.” That means that using marijuana in multifamily housing would likely not be a reasonable accommodation a housing provider has to allow, even if it is for medical purposes.

The bottom line is that the current state of the law does not require the approval of medical marijuana as a reasonable accommodation for a disability. Nevertheless, this is an evolving area of the law, and specific requests for accommodations related to marijuana use should be discussed with your attorney.