The Employer’s Guide to Medical Marijuana & Background Checks
Editor’s note: Nothing in Checkr’s Blog should be construed as legal advice, guidance, or counsel. Companies should consult their own legal counsel about their compliance responsibilities under the FCRA and applicable state and local laws. Checkr expressly disclaims any warranties or responsibility or damages associated with or arising out of information provided. The resources provided here are for educational purposes only.
The public’s perception of marijuana has undergone a major shift, largely due to the legalization of medical and recreational marijuana across much of the country. Widespread acceptance of medical marijuana is in part the result of a large amount of research stating cannabis offers several benefits in treating a wide range of medical conditions.
Studies have shown that medical marijuana can greatly reduce symptoms in those suffering from chronic pain, reduce blood pressure levels in those experiencing hypertension, and can also be used to treat glaucoma.
With this in mind, the matter becomes less about whether or not marijuana is a legitimate form of prescribed medication (because in 38 states, it is), and more about how it can be safely and adequately managed—especially as it relates to the workplace.
So, what should employers know about medical marijuana? And what can they expect when conducting background checks? Let’s take a closer look.
Medical marijuana & background checks: an overview
Now that many states have legalized medical cannabis, the result is that governments, companies, and policymakers are scrambling to determine which regulations and protective measures will apply (and when).
It’s a landscape that’s constantly evolving, but here are a few key points regarding medical weed background checks that companies and hiring managers should keep in mind:
1. The right to patient privacy
The Health Insurance Portability and Accountability Act (HIPAA) applies to medical marijuana, despite the fact that cannabis is not federally legal in the United States. This means any marijuana dispensary which collects or stores patient information is required, by law, to remain HIPAA compliant. It also means that anyone who purchases marijuana from these establishments is protected, thanks to the strict limits and conditions HIPAA places on the uses and disclosures that may be made of such information without a person’s explicit consent.
2. The case for discretion
Is requiring applicants to take a weed test legal? Despite widespread medical marijuana legalization, testing most employees for marijuana either before or after they’re hired is up to the employer and will depend on state laws. Unless the industry or the open position requires drug testing (government workers and commercial drivers, for example), it’s up to employers to decide whether drug testing makes sense for them.
Because cannabis is approved for medicinal purposes in most states, employers should think carefully about how necessary it is to test for marijuana. Testing new job applicants may not be necessary if the role for which they’re applying is not a safety-sensitive role (i.e. operating heavy machinery, police officers, etc.)
Additionally, testing current employees can result in workers feeling scrutinized in their roles. Especially if your business is operating in a state with legalized medical or recreational weed, no background checks are necessary depending on your business needs. When in doubt, consider only drug testing for marijuana when it’s necessary to keep staff or members of the general public safe, if there is a risk of impaired performance of job duties, or if it is part of a standardized process that has been clearly communicated to all employees and potential hires (i.e. requiring on-going random weed tests for transport truck drivers as per US trucking regulations).
3. The need for formal testing policies
The best way to navigate medical marijuana, background checks, and drug testing is to have a documented formal policy around when and why you conduct these activities. Having a formal policy will eliminate confusion and provide clarity for job applicants as well as your existing team members. It will also help mitigate situations where a current or potential employee feels singled out.
Medical marijuana & background checks FAQs
Let’s review answers to common questions around medical marijuana, background checks, and drug testing laws for weed.
Is medicinal weed legal?
The answer to this question varies by state. While medical marijuana has been legalized in over two-thirds of the United States, it is not legal at the federal level. It’s also important to note that the nuances in the laws around medical marijuana also differ by state. For example, states can differ on what form of consumption is legal, how much cardholders are legally allowed to possess at any given time, whether growing at home is legal, and validity across state lines. Here are a few examples:
- Consumption – Medical marijuana is legal in Minnesota, but smoking it from joints or bongs is not. Cardholders are only allowed to consume cannabis in liquid form, pills or vapes.
- Possession – In Arizona, medical marijuana patients are legally allowed to possess up to 2.5 ounces, while Florida’s limit is higher at 4 ounces.
- Growing at home – Many medical marijuana cardholders are not allowed to grow medical marijuana plants at home, but Maine cardholders may cultivate up to 12 plants.
- Validity across state lines – Many states won’t accept cards from across state lines. For example, medical dispensaries in Missouri will not accept out-of-state medical marijuana cards.
Will a medical marijuana card show up on a background check?
The short answer is no, it won’t. Medical marijuana cards can only be obtained through a doctor, meaning HIPAA law prevents this information from being disclosed. Because medical marijuana cards are technically part of a candidate’s health records, this information cannot be shared. The only exception is for federal employees—because marijuana is illegal under federal law, those employed by the federal government are held to its regulations. In other words, there’s a chance a medical marijuana card will show up on a background check if requested by a federal employer.
Does buying weed show up on a background check?
There is no way to tell if a person has purchased medical marijuana legally from a dispensary, as this information is protected under HIPAA law and is also not stored or shared with government agencies for any reason. The only way a background check might reveal a candidate has purchased marijuana is if they did so illegally and were criminally charged for doing so, depending on the state’s laws on past marijuana charges.
Can candidates not be hired or engaged based on a positive drug test?
The regulations regarding how employers may use positive drug tests for marijuana vary by state. It’s important that you research the laws in your area before taking adverse action against a candidate or punitive action against a current employee. Below are a few examples of state drug testing laws for weed and how employers may use the results:
- The state of Georgia does not offer any protection to employees who have tested positive for marijuana, even if it is used for medical purposes. If marijuana is detected, employers maintain the right to terminate employment.
- New Mexico allows employers to fire or discipline medical marijuana users based on a positive drug test.
- In California, employers can dismiss employees for marijuana use at work or for a positive drug test, regardless of whether the employee uses marijuana recreationally or medically.
- In Illinois, employers may penalize employees they believe consumed or possessed weed at work. This includes anywhere on company property or during work hours. They may also act on good faith belief that an employee was under the influence while at work or on company property. Employees have the right to challenge the basis of these good faith beliefs.
What is DOT testing?
The U.S. Department of Transportation (DOT) requires that any employee in the aviation, transportation, maritime, or pipeline industries undergo regular drug testing for safety reasons. This is referred to as DOT testing and is a requirement for all individuals employed in these fields.
How often can random drug tests be administered?
There is no limit to how frequently an employee can be randomly selected for drug testing. Random selection is typically performed using a computer-based random-number generator or by inputting employee information into a testing pool. Employees are then selected at random by computer, similar to drawing names from a hat. Note: some states don’t allow or prohibit random drug testing. Be sure to familiarize yourself with state and local laws.
Are federal employees required to undergo drug testing?
Some federal employees are required by law to undergo drug testing if their role is considered to be a “testing designated position” (TDP), meaning they can be drug tested at any time. In fact, 30% of all employees in TDPs are required by federal law to be tested at least every 12 months. Federal employees may also be drug tested if there is reasonable suspicion that they were impaired while performing their duties. It is also legal for federal organizations to require a negative drug test as a condition of employment.
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