An increasing number of states have adopted laws legalizing use of marijuana for treatment of medical conditions. Of course, these laws contradict the federal Controlled Substances Act which continues to consider marijuana to be a Class I prohibited controlled substance. On Monday, the Ninth Circuit Court of Appeals rejected a claim by users of medical marijuana that a city's prohibition on marijuana dispensaries and cooperatives violates the Americans with Disabilities Act.

James v. City of Costa Mesa involved a claim under Title II of the ADA, which prohibits discrimination by government entities in the provision of public services. The plaintiffs contended that the City was interfering with their ability to use legally prescribed marijuana to manage their impairments. The Ninth Circuit rejected this position based on its reading of federal law. The ADA contains a direct exception from the definition of disabled persons for users of illegal drugs. Despite the California law, marijuana remains illegal under superseding federal law. The fact that the marijuana was prescribed by a licensed physician does not overcome this exclusion.

This case has legal implications for employers. Some employees who return positive results for marijuana on employer-administered drug tests have contended that the employer cannot take adverse action against them under Title I of the ADA. Title I contains the same exclusion for illegal drug use as that used in Title II. Based on the Ninth Circuit's reasoning, employers can take adverse action against such employees without fear of an ADA claim, even where the marijuana was legally prescribed under state law.

Several states have considered amending their medical marijuana laws to directly prohibit employers from acting against employees or applicants who have prescriptions. While the James decision would not directly affect these cases, employers may be able to use the federal Controlled Substances Act as the basis for challenging these laws. In the meantime, employers with operations in medical marijuana states should amend their drug use and testing policies to make clear their position regarding use of medical marijuana.