Medical Marijuana and Reasonable Accommodations in Housing

Housing providers are required to make reasonable changes in their policies and procedures to allow benefit disabled individuals to fully benefit from the housing opportunity by both the Washington Law Against Discrimination and the federal Americans with Disabilities Act. This obligation to provide a reasonable accommodation applies to private landlords. Some examples of reasonable accommodations include allowing a guide dog in a no pets building and allowing a tenant to install a grab‐bar in the shower. With recent changes to the law concerning marijuana, landlords are faced with the question of whether they need to allow medical marijuana in a non‐smoking or drug free rental unit.

 

All uses of marijuana are illegal under federal law. Washington allows both the medical and recreational use of marijuana by adults. Recreational use of marijuana does not receive any special protection under Washington law; Landlords are free to prohibit recreational marijuana. Washington landlords may wish to prohibit use of recreational marijuana because smoking it may annoy other tenants, increase costs at turnover, and put a building as risk of federal asset forfeiture. A landlord who wishes to prohibit marijuana on his or her property should add a specific clause in the lease prohibiting its use. A generic ban on “illegal activity” may not be effective now that marijuana is legal under Washington law.

 

Medical use of marijuana creates a different question. The Washington Legislature determined that medical use of marijuana may benefit individuals with glaucoma and Crohn’s disease, among other disabilities.  If a landlord chooses to prohibit use of marijuana in his or her building, a medical user may request an accommodation by allowing him or her to consume this medicine notwithstanding the prohibition in the lease. Washington employers are specifically exempted from granting reasonable accommodations based on medical marijuana use by RCW 69.51A.060. Washington landlords are not given similar explicit protection.

 

The official position of both the United States Department of Housing and Urban Development and the Washington State Human Rights Commission suggests that landlords are not required to allow medical marijuana as a reasonable accommodation. In Assenberg v. Anacortes Housing Authority, the Ninth Circuit Court of Appeals affirmed that it was per se unreasonable to ask a public housing authority to violate federal law by allowing medical use of marijuana. Based on this and other decisions, the Washington State Human Rights Commission adopted a policy of refusing to investigate claims of discrimination based on medical use of marijuana. However, that same policy leaves open the possibility of a medical user bringing a private lawsuit for discrimination based on the same actions. Housing and Urban Development currently bans public housing authorities from admitting any marijuana user to its subsidy programs, but allows individuals already in the program to use medical marijuana in a subsidized property under certain circumstances.

 

A landlord who wishes to allow marijuana use, whether recreational or medical, may prohibit smoking but allow consumption of marijuana by other means. Before taking this approach, landlords should consult with their insurance carrier for any coverage consequences to allowing an activity that is illegal under federal law. Landlords who allow marijuana consumption should also consider banning preparation activates such as cooking “special brownies” or producing hash oil because of potential impact on the building. Most activates related to growing and preparing marijuana are also regulated by state and local law.

 

Landlords should act with caution because this is a rapidly changing legal environment. Based on current law, landlords may refuse to allow even medical marijuana with reasonable confidence, but that may change. Landlords may safely adopt and enforce smoke free or marijuana free policies for their buildings. If a landlord receives a request for a reasonable accommodation allowing medical marijuana, the best practice is to consult an attorney who stays up‐to‐date on this changing regulatory environment.

 

If you need assistance with a lease review related to tenant marijuana use, an eviction, notices, litigation or other landlord-tenant dispute, please call 206.443.8678 today to speak with one of our experienced attorneys.

 

Important: The Loeffler Law Group PLLC provides this information as a courtesy without any claim as to its effectiveness or legality. Use of the information in this hand-out does not in any way create an attorney-client relationship between the user and any party associated with the Loeffler Law Group PLLC.

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