On Monday, June 6, 2005, the U.S. Supreme Court in Raich v. Gonzalez affirmed that federal law enforcement may prosecute people who possess marijuana, even if that marijuana is "home grown" and for medical purposes. Some in the media have been reporting that the Supreme Court "overruled" medical marijuana laws; it did not. Nevertheless, this ruling may have an impact on employers faced with the prospect of accommodating medical marijuana users, because of the chilling impact on the overall use of medical marijuana.
The Supreme Court's Ruling in Raich.
In Raich, two women who participate in California's medical marijuana program sued to prevent the federal government from prosecuting them for possessing marijuana that had been grown in-state, arguing that the federal government cannot regulate drug production if the drugs don't cross state lines. The Supreme Court held that even "home grown" marijuana may impact interstate drug sales, and so the federal government can prosecute anyone who possesses marijuana, no matter where it was grown. The Raich ruling follows a 2001 case in which the Court affirmed that anyone who distributes marijuana may be prosecuted, and a 2002 ruling that prevents the federal government from yanking the licenses of doctors who recommend marijuana to their patients.
The Impact on State Medical Marijuana Laws.
Eleven states have some sort of medical marijuana law, including California, Nevada, Washington, and Oregon. Raich dealt with California's medical marijuana law, so it is now clear that participation in California's program will not protect a marijuana user from federal prosecution.
The impact on Oregon, Nevada, Washington, and other states is less clear. In reaction to the ruling, Oregon suspended issuing new medical marijuana cards. Other states may follow suit. Existing cards are still valid, however, and it seems unlikely that Oregon and other states will simply give up. Advocates claim that because Oregon state officials maintain more control over who is authorized to participate in the medical marijuana program than does California, Oregon users may have a better argument that patients in the program should be exempt from prosecution. A lawsuit filed by a Sweet Home, Oregon man against the federal government in 2003 making exactly that argument failed at the trial court level. He appealed to the Ninth Circuit, which put the case on hold pending a decision in Raich, along with the appeals of a number of people from other states who were prosecuted for growing medical marijuana. Now that the Supreme Court has ruled, those cases will go forward. It appears unlikely, however, that the Ninth Circuit will rule that medical marijuana users in Oregon, Washington or other states are immunized from federal prosecution while those in California are not.
The immediate impact of the ruling in Raich will be to throw a wet blanket on the medical marijuana programs of every state. Federal law enforcement will decide how aggressively to go after medical marijuana growers; these decisions, often made at the local level, are subject to change all the time, and the fear of prosecution may deter all but the most determined marijuana user. Also, physicians may be less inclined to recommend marijuana to their patients.
The Impact on Employers.
Hopefully, this ruling will also decrease the number of employees coming to their employers asking for an accommodation for their use of medical marijuana. It does not, however, change the fact that an employer may have an obligation to treat people using medical marijuana as potentially entitled to a reasonable accommodation for their drug use. In Oregon, a recent case held explicitly that under state disability law, employers have to engage in the interactive process if a medical marijuana user requests an accommodation, such as exemption from a company-wide drug testing program. Although the issue has not been the subject of published court opinions in California, Nevada, or Washington, laws in those states are similar to Oregon's, and employers should be prepared to treat medical marijuana users as potentially disabled. The ruling in Raich does not change the fact that employers are not required by the Americans with Disabilities Act (a federal law) to make an accommodation for medical marijuana use.
If you would like to discuss your company's drug use policies, disability policies, or other employment practices, please contact any member of our Employment Group.