Can I be evicted for using medical marijuana?

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Pennsylvania legalized medical marijuana in 2016, allowing registered patients to use cannabis to help treat 23 serious medical conditions, such as cancer, epilepsy, and glaucoma. And as of December 2020, more than a half million patients and caregivers are registered, according to the Pennsylvania Department of Health.

But while marijuana is legal for medical use in the commonwealth, it is still illegal federally, where it’s listed as a Schedule I drug under the Controlled Substances Act, alongside drugs like heroin and LSD. That inconsistency has created a number of challenges — and housing rights for medical marijuana patients is among them.

If you are a medical marijuana patient, Pennsylvania law prevents you from being discriminated against at work but doesn’t say anything about housing, says Pittsburgh-based attorney Patrick Nightingale. “This is one of the many unaddressed subjects in our medical marijuana law that directly impacts patients.”

So, if you’re a patient, what does that mean for you? Can landlords refuse to rent to you, or even evict you? And what should you tell your landlord when looking for housing? Here are some basics:

Yes. Because marijuana is illegal federally, and there are no housing protections for medical marijuana patients in Pennsylvania, private landlords can ban you from using it. But it comes down to your lease, says DeVaughn Ward, senior legislative council for the Marijuana Policy Project.

“There is certain language that landlords can use to be able to discriminate against tenants who have medical marijuana cards,” he says.

That means your lease could include language that prohibits you from possessing or using medical cannabis in the rental property, or says that you have to abide by state and federal law. If your lease includes language like that, and you violate the terms, you could be evicted.

If your lease just says you can’t use “illegal drugs,” you may be able to fight it, says Nightingale, because if you’re a registered patient, using medical cannabis wouldn’t be considered illegal drug use in Pennsylvania. But Nightingale’s partner and fellow Pittsburgh-based attorney Andrew Gross says it might not be easy, depending on what the lease says. So, check your lease and find out — and many leases might not say anything at all.

“If it’s not in the lease, then the tenant could argue that they’re not in breach of the lease because there is no provision that prevents them from using medical marijuana,” says Gross.

Being a medical marijuana patient who lives in public or federally subsidized housing can be particularly complicated. Often, it comes down to choosing between having legal access to medical marijuana, or a place to live, says Dustin McDonald, interim policy director for Americans for Safe Access.

“You can’t really legitimately participate in a medical cannabis program and be in federally subsidized housing without the risk of losing one or the other,” he says. “From a federal standpoint, pushing people out of public housing for utilizing medical cannabis — even if they’re registered under state programs — is completely acceptable.”

According to 2014 guidance from the Department of Housing and Urban Development, public housing agencies and owners of federally assisted housing are “required ... to deny admission to any household with a member” who is using a controlled substance like marijuana, or if they believe that the “illegal use may interfere with the health, safety or right to peaceful enjoyment of the premises” by other residents.

And housing authorities and owners of subsidized housing can choose to evict you.

“If you declare that you are a state medical cannabis patient, you can be denied the ability to have a HUD voucher and stay in a HUD unit, and you can also be evicted,” McDonald says. “You really don’t have a lot of options.”

Pennsylvania saw this situation play out recently when a medical marijuana patient named Mary Cease was denied federal housing in Indiana County. Court documents filed by Cease cited HUD’s 2014 memo, saying that the Housing Authority of Indiana County “concluded that it had no choice but to deny” her housing.

“Generally speaking, managers of federally subsidized property are given the discretion as to how they want to treat this,” Nightingale says. “But if they want to prohibit it, it is 100% lawful and within their discretion to prohibit it.”

In general, no. Federal laws like the Fair Housing Act and the Americans with Disabilities Act protect people with disabilities from housing discrimination — and if you are a medical marijuana patient, you may well have a disability that ordinarily would be protected. But using medical marijuana can remove those protections, says Gross.

Here’s how it works: Even if you have a disability, you aren’t protected if you’re using drugs that are illegal federally, Gross says.

If you have a disability, those laws allow you to ask for “reasonable accommodations” to make living at a property easier, like changing when you pay your rent to coincide with when you get your disability check. But in public and federally subsidized housing, you can’t ask to use medical marijuana as a reasonable accommodation, according to a 2011 memo from HUD.

(Private landlords, meanwhile, can choose to accommodate your medical marijuana request, but they are not required to do so.)

If you’re looking for housing, one big question may be whether to even tell your landlord that you participate in the state’s program.

And there may be no way for them to find out. After all, Nightingale says, the commonwealth’s medical marijuana laws do provide patient confidentiality, so there’s “no legal way for someone to force a patient to disclose that information.”

And medical marijuana patients in Pennsylvania are supposed to vaporize (or “vape”) marijuana to ingest it, or take pills or use an ointment: Smoking, the most obvious sign of marijuana use, is not allowed. (Vaping produces far less odor.) So, how would your landlord actually find out that you’re a medical marijuana patient in the first place?

So, should you disclose?

“I don’t think that there’s any realistic way that a landlord would even find out,” Gross says. “If I were advising a tenant, I would advise them that there’s no reason to disclose that information. If I was pulled over by a police officer, I wouldn’t volunteer that I had a medical marijuana card. So, I wouldn’t volunteer that information to a landlord, either.”

Both McDonald and Ward, however, advise the opposite. As McDonald puts it, if you’re enrolled in the state’s medical marijuana program, you should have a “responsible conversation with your landlord” about how you legally treat your ailment with cannabis, and ask that they accommodate that in your lease. That comes with a risk: The landlord doesn’t have to grant your request.

If you’re trying to get in public housing, Nightingale notes, you should be aware that the outcome might not be in your favor.

“Whether they reveal it or not, it is 100% within the purview of the property manager to prohibit it,” he says. “Read the lease carefully, and know that if it’s federally subsidized housing, you basically have no rights.”

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