Until the Americans With Disabilities Act (ADA) is amended, marijuana use will not be a protected activity and employers can enforce drug-free workplace policies that may interfere with the use of medical marijuana without committing disability discrimination. At least that's what it appears the Ninth Circuit reasoned in recent decision.
The ADA does not protect "Illegal drug use." Despite medical marijuana being legal in California, the ADA defines illegal drugs as those illegal under federal law. The Controlled Substances Act specifically includes marijuana in its list of illegal drugs.
The facts of the actual case, James, et al. v. City of Costa Mesa, et al., No. 10-55769 (9th Cir. 11/01/12), do not involve an employment or workplace issue. The plaintiffs are severely disabled California residents whose doctors recommended the use of medical marijuana for pain relief and other purposes.
When the cities where the plaintiffs were purchasing their marijuana took hostile steps toward the dispensaries, the plaintiffs filed suit. Their claims were based at least in part on the protections of the ADA. They asserted that the cities were violating their rights that were protected by the ADA by limiting their ability to access public services and interfering with their right to obtain marijuana for medical purposes.
The Court looked past the fact that the marijuana was obtained based on the recommendations of each person's doctor. That did not qualify as a "supervised use" under the ADA. In reasoning that marijuana use is not protected by the ADA , the Court relied on the language of the Controlled Substances Act which notes that marijuana has no accepted medical use.
Source: Risk & Insurance Online, "Medical marijuana users denied ADA protections"