Ross is another prime example of how the state's Compassionate Use Act and the federal Controlled Substances Act collide in the "real world" and another example of how these two acts cannot practically co­exist. In 2005, Gary Ross applied for and was given a conditional offer of employment with Ragingwire Telecommunications as a lead systems administrator. Ross submitted to a pre­employment drug screening which returned a positive result for THC. Ross was using marijuana under the Compassionate Use Act, which grants, in part, criminal immunity to people who are using marijuana pursuant to a physician's recommendation.

Ragingwire revoked Ross' offer of employment. The parties did not dispute that Ross could perform the essential functions of the position. Ross contends he did not use marijuana in the workplace and was not mentally impaired by its effects while at work.

Ross filed suit against Ragingwire alleging, in part, that he had been discriminated against because of his "disability" and Ragingwire had failed to provide him a reasonable accommodation in violation of the Fair Employment and Housing Act. The Third District Court of Appeal stated that the "dispositive issue" was whether Ross' use of marijuana was legal, and although Ross' use was legal under state law, it was illegal under federal law, specifically, the Controlled Substances Act. In so finding, the court relied upon the U.S. Supreme Court's ruling in Gonzales v. Raich, 125 S.Ct. 2195 (2005).

Gonzales v. Raich presented the issue as to whether the long arm of the Constitution's Commerce Clause could reach the local use, cultivation and distribution of marijuana within the state of California. The U.S. Supreme Court's majority found that the clause could reach California's Compassionate Use Act, thereby leading the way for the federal government to continue to issue criminal sanctions against anyone using, cultivating or distributing marijuana.

The text of the Controlled Substances Act makes illegal the use of any "controlled substance" unless used according to a "valid prescription." (See 21 U.S.C. §844(a).) Marijuana is a "controlled substance," but it may never be obtained pursuant to a "valid prescription." The Code of Federal Regulations defines "valid prescription" as a prescription which is issued for a "legitimate medical purpose by an individual practitioner licensed by law to administer and prescribe the drugs concerned and acting in the usual course of the practitioner's professional practice." (See 21 C.F.R. §1300.02.) Marijuana is listed in Schedule I of the Controlled Substances Act, which means that the federal government has found that it is a "drug or substance [that] has no currently accepted medical use in treatment in the United States." (See 21 U.S.C. §812(b)(1)(B).)

In addition, the Compassionate Use Act uses the term physician's "recommendation," not prescription. At least one court has found that "recommendation" is not the same as a "prescription." That court found that if a doctor makes a "prescription" for marijuana, he or she may be guilty of aiding and abetting the use of marijuana in violation of federal law, while on the other hand, if a doctor merely makes a "recommendation," there is no violation of federal law, and the "recommendation" is protected under the First Amendment. (See Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). [.pdf])

So if marijuana use is indeed illegal under federal law, even if pursuant to a doctor's "recommendation" or "prescription," must employers still tolerate its use for fear that they may be discriminating or failing to provide a reasonable accommodation to an employee who uses marijuana for a recognized physical disability or medical condition?

In Ross, the California court of appeal said "no," finding that a court has no legitimate authority to compel employers to permit employee drug use that is illegal under federal law. Ross, however, is contending before the Supreme Court that California courts have long recognized that the state
does not and cannot enforce federal criminal statutes. This is true, but in this context, a court would not be enforcing federal criminal statutes so much as a court will not compel employers to permit drug use which is illegal under federal law. Ross is not being punished with criminal sanctions for using medicinal marijuana, which is legal under state law, but courts should not force employers into accepting medicinal marijuana use under the threat of civil liability where such use still remains illegal under federal law.

The result is no different than if Ross were using a legal drug, for example, Oxycontin, but had obtained the drug illegally. An employee may have a physical disability or medical condition protected under FEHA that the employee uses Oxycontin to alleviate. However, an employer should not have to accommodate the employee's illegal use of Oxycontin by turning a blind eye to a positive drug test simply because the employee is claiming to use Oxycontin for a protected physical disability or medical condition.

There also appears to be another problem with Ross' case. There is little factual information to indicate that Ross was not hired because of a disability or that he needed a reasonable accommodation to perform the essential functions of the position. Indeed, Ross did not use marijuana while on the job and was not under the mentally limiting effects of marijuana while at work. In addition, Ross had already been working in the same position for years without any complaints on his job performance.

In order for a physical disability to be protected under FEHA, the physiological condition must "limit" a major life activity. The term "limit"' must be "determined without regard to mitigating measures such as medications Š unless the mitigating measure itself limits a major life activity" (emphasis added). (See Cal. Gov't Code §12926(k)(1)(B)(i).)

Ross was refused employment not because he had lower back strain and muscle spasm (an arguable physical disability); he was refused employment because he used marijuana to treat his physical ailment. Thus, whether his lower back strain and muscle spasm are disabilities is irrelevant since he was not refused employment for it. The supposed disability is his use of marijuana to treat a physical impairment. However, his use of marijuana does not "limit" a major life activity. Ross was able to perform the essential functions of the job without problems even while using marijuana. No indication is made that his use of marijuana limited any other major life
activity (i.e., driving, caring for oneself, etc.).

Not only does Ross appear not to have a protected disability in his use of medicinal marijuana, he does not require a reasonable accommodation. Reasonable accommodations include adapting existing facilities to make them readily accessible and usable to the employee, job structuring, modified work schedules, reassignment, acquisition or modification of equipment and
other similar accommodations. (See Cal. Gov't Code §12926 (m); Cal. Code Regs., tit. 2, §7293.9(a).) However, as one California court has found, where an employee does not need a reasonable accommodation to perform the essential functions of the job, but merely wants to not be terminated, or to be rehired, such a request in and of itself is not a reasonable accommodation (See Brundage v. Hahn, 57 Cal.App.4th 228, 239­240 (1997)).

It is understandable if Ross believed that while he used marijuana consistent with the Compassionate Use Act, he would not run into trouble with obtaining and keeping employment in his chosen field. The fact of the matter is, no matter how well­intentioned the Compassionate Use Act is or was, it will never provide such broad protection as many voters may have thought. Because the federal government has the power to criminalize medical marijuana use in any state, and the federal government continues to criminalize medical marijuana use, Ross' relief will probably best be found through legislation, not the California Supreme Court.

Frances Rogers is an associate in Liebert Cassidy Whitmore's Fresno office who practices labor, employment and education law.

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