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The Supreme Court ruled today that the federal government may enforce the Controlled Substances Act prohibition on the use of marijuana for medical reasons against persons who use marijuana under state "medical marijuana" laws. The case, Gonzales v. Raich, No. 03-1454 (S. Ct. June 6, 2005) overturns a 9th Circuit decision enjoining federal prosecution on the ground that growing and using medical marijuana was outside the broad sweep of the Commerce Clause. The decision is authored by Justice Stevens, 6-3, with Justices O'Connor, Rehnquist, and Thomas dissenting.

The decision undermines the reach of the state "medical marijuana" laws (there are 11) by allowing the federal government to prosecute those who use marijuana, even in accordance with state law, and has a practical effect for employers as well. Had the Controlled Substances Act been found overbroad, employers might have found themselves having to consider "reasonable accommodations" of such use by employees and job applicants who smoke marijuana on a doctor's recommendation. Ignoring such use would have undermined many company drug testing policies. By affirming that this conduct is in fact illegal under federal law, employers can refuse to consider accommodations that would acknowledge or support illegal activity. Please note that employers may still have to consider accommodating an employee whose medical condition has led to a recommendation of marijuana use; however, a "reasonable" accommodation is likely to include allowing employee to take time to transition to another medication (e.g., Marinol) or other treatment, and not to ignore the fact of the marijuana use. Medical review officers, too, can verify drug test results as "positive," for marijuana even if the employee is using the drug under state law without fear that by so doing, they are ignoring medical authority making such use lawful.