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.
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Guide
Beginner's Guide to Background Checks
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Medical marijuana & background checks FAQs
Does buying marijuana from a dispensary show up on a background check?
No. Legal dispensary purchases are protected under HIPAA and aren’t shared with government agencies. The only scenario in which marijuana-related activity might appear on a background check is if a candidate was criminally charged for an illegal purchase, and even then, it depends on the laws in your state.
Can you deny a job to someone who tests positive for marijuana?
It depends on where your business operates. State laws vary significantly on this. In Georgia, employers can terminate employment based on a positive marijuana test even if it is used medically. In California, employers can dismiss employees for marijuana use at work or a positive drug test. In Illinois, employers can act on a good-faith belief that an employee was impaired at work, but employees have the right to challenge that belief. Research the laws in your state before taking any adverse action.
Do employers have to drug test for marijuana?
Not always. Unless a role is safety-sensitive or falls under a regulated industry like transportation or aviation, drug testing is at the employer’s discretion. Roles that don’t involve operating heavy machinery or public safety may not require testing at all. When in doubt, consider whether testing is genuinely needed to keep staff or the public safe, and whether it’s part of a clearly communicated, standardized process.
What is DOT testing, and does it apply to my business?
DOT testing refers to drug testing that’s required by the US Department of Transportation. It applies to employees in the aviation, transportation, maritime, and pipeline industries. If your business operates in one of these sectors, regular drug testing is a legal requirement for covered employees, regardless of state marijuana laws.
How often can employers conduct random drug tests?
There’s no federal limit on how frequently an employee can be randomly selected for drug testing. Random selection is done through a computer-based system. Some states restrict or prohibit random drug testing altogether, so check the rules in your state before setting up a testing program.
Are federal employees subject to different marijuana rules?
Yes. Federal employees in roles classified as “testing designated positions” can be drug tested at any time. Federal organizations can also require a negative drug test as a condition of employment. Because marijuana is still illegal under federal law, federal workers are held to stricter standards than employees in states where medical or recreational use has been legalized.
What is the best way to manage marijuana-related drug testing policies?
Start with a documented, formal policy that explains when and why drug testing happens. A clearly written policy reduces confusion for both job applicants and current employees. It also helps your organization be consistent and gives you a defensible record if your procedures are ever questioned.
