Reminder: This post contains some information about laws in various states but should not be considered legal or career advice. It is meant to offer information and insight into how laws in place can affect medical cannabis use and employment. It’s meant to help you make an educated decision regarding disclosing medical cannabis use to your employer.
Medical marijuana is everywhere. It’s available in some form in all but two states in the United States. And yet, there is still a stigma around cannabis use. While attitudes are changing there are still companies that have mandatory drug tests. If your medical marijuana use is detected should you have told your employer before?
- Can using cannabis put you at risk of being fired?
- Are there any protections if you’re using medical marijuana?
- Can your employer find out about your medical marijuana card from your health insurance?
- What are your rights?
After all, if it’s legal to use cannabis and you do it on your own time should you even have to disclose that to an employer? If you fail a drug test is it better to have told them before? With inflation and job insecurity on the rise, many employees may not want to risk having their medical marijuana card and employment at odds in any way.
There are protections in place for your health information and from discrimination in the workplace. Do these protections carry over to medical marijuana patients? If your employer can require a mandatory drug test what are your rights and protections?
This post will explore the various sides of this issue and answer these common questions so you can make a more informed decision. To tell or not to tell is the question, but you also cannot take back information you willingly disclosed.
Here’s some information to consider about medical marijuana and employment rights before you share something you may not even have to.
Does Having A Medical Card Affect Your Job?
Having a medical marijuana prescription or card should not affect your job. After all, it’s medicine. There are cases where people are medically prescribed controlled substances and they remain on the right side of the law. In those cases, you don’t have to tell your employer.
After all, if you require painkillers or ADHD medication that might cause you to fail a drug test. Is marijuana in the same boat or will outdated attitudes on cannabis impact your job security?
Drug tests are not the only factor to consider in this issue. After all, cannabis use can, in some cases, impair your ability to perform certain tasks. This can create the argument that any use of medical marijuana while at work may limit your ability to effectively do your job.
For example, if you need to drive or are involved in a position that involves public safety. These are some of the few cases where medical marijuana might impact your ability to do your job so it can affect your employment.
Performing these tasks while using medical marijuana may open up your employer to liability, can be illegal, or can increase the chances of negligence.
This is the main crux of the issue. By using medical marijuana you are not breaking the law so legality is essentially a non-issue. However, depending on your state this may not necessarily be protected. Also, companies can set policies that may make this an issue.
According to the Supreme Court in the case, Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989), drug testing can be a violation of privacy but they decided that it does factor into the case for public safety which makes it legal in those cases.
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Here are a few positions that regularly require drug testing and where your medical marijuana might be revealed by a drug test.
- Federal and Government Jobs: Cannabis remains federally illegal. So while working or interviewing for a federal job you may be drug tested. A positive result would mean you could be breaking federal law which would affect your job. Additionally, given the degree of severity of background checks for some government positions it may come to light you’re using marijuana or have your medical marijuana card. The argument could be made that marijuana use could put sensitive state or federal information at risk so that may be an issue.
- Truck and CDL (Commercial Driver’s License) Drivers: Driving while under the influence of cannabis is illegal. Operating large vehicles while under the influence creates a public safety issue. There are regularly mandated random drug screenings where marijuana use may be detected. It can vary depending on your company’s policies and local state law as to if this could be an issue.
- Public Safety Positions: Police officers, firefighters, and EMTs are all responsible for keeping the public safe. There are lives on the line. They are required to take pre-employment drug screenings as well as random drug tests. If these employees are high on cannabis and it results in a death or public safety issue this could be problematic.
- Medical Employees: Marijuana use could put patients at risk so hospitals may have a policy regarding marijuana use. They also may require drug testing which could reveal a positive marijuana result.
- Social Workers: Like public safety and medical workers, social workers make decisions affecting people’s lives, living situations, and health. Sobriety is important for their best judgment so they are often tested before and during employment.
- Counselors/Therapists: Especially if they work in rehabilitation, this can potentially be an issue with clients. They may be subject to drug testing. They also handle public health and sensitive information which can be a cause for concern if they’re under the influence of cannabis.
- Professional Athletes: Tara Davis and Sha’Carri Richardson have both been stripped of their Olympic titles for using cannabis. Athletes are regularly tested for drugs to ensure there are no competitive advantages. Depending on the rules of the sport or that sport organization the use of cannabis can be outlawed or prohibited.
Again, it’s important to note that these conditions can vary by employer or by state. There is also some grace on a case-by-case basis. It’s important to know a mandatory drug test that tests positive for cannabis would reveal you use medical marijuana and how you handle that could affect your employment.
Before we explore what can happen, let’s explore, if an employer can even find out you have a medical marijuana card if you do not directly disclose it.
Can Employers See If You Have A Medical Card?
Under the Health Insurance Portability and Accountability Act (HIPAA) and state privacy laws, your health information is protected. This means the personal contact information of individuals registered for medical marijuana cards and people who purchase medical marijuana from dispensaries can not be found directly.
This also means that this type of information will not show up on a background check. There is no guarantee that this information may not have been sold to a third party though. While there are laws protecting this data, part of the issue with third-party data collection is their ability to skirt some laws by compiling data from various sources and monetizing it by sharing it.
It is important to know that it is generally illegal for a company to seek out whether you have a medical marijuana card or not. This should provide some solace that this information is protected. Now the question is what can they do if they find out?
Can Your Employer Fire You For Using Medical Marijuana?
This is a complex question. Technically, by the letter of the law in many states it is illegal to discriminate against someone for their use of medical marijuana. However, given that marijuana is federally illegal and, as mentioned, can impair your ability to do your job this creates a legal gray area.
Additionally, many states leave this in the hands of the employer. An employer can insist on a drug-free workplace and that can mean that they do not want anyone with a positive drug test result to work there.
The main issue is you can be fired for using medical marijuana if you use it at work. There are some states that protect your rights as a medical marijuana patient and some that do not. However, that argument is based on your right to use your cannabis on your time.
Many states that have legalized medical marijuana do have protections in place for employees to protect themselves from discrimination. Laws like California Assembly Bill 2188 (AB 2188), Senate Bill 700 (SB 700), and Washington State’s Senate Bill 5123 (SB 5123) protect employees not only from medical marijuana use but even off-duty recreational marijuana use.
Arizona, Arkansas, Delaware, Minnesota, Oklahoma, and West Virginia have laws prohibiting discrimination against employees based solely on medical marijuana patient status.
Conversely, states like Georgia and New Mexico allow employers to discipline their employees after a positive drug test regardless of their status as medical marijuana patients.
There are some protections employees have that should be considered regarding cannabis and drug testing. For example, if you are unfairly singled out for a drug test you may be protected under the law.
Here are some laws to consider:
The Civil Rights Act of 1964 protects all employees from discrimination based on race, sex, religion, or nationality. If you are targeted based on any of these criteria for a drug test the argument can be made that your rights have been violated. Again, this is not 100% legal protection but it’s valuable to know your rights.
The Family and Medical Leave Act (FMLA) protects eligible employees from being fired, demoted, or passed over for promotion when they need to leave for up to 12 weeks to take care of personal or family-related medical conditions. Should you get conveniently drug tested over a medical condition or a pregnant spouse, this may be cause for an unjust drug test.
The Americans with Disabilities Act (ADA) protects people with disabilities and ensures that employers must provide adequate support. Some conditions that qualify for medical marijuana can be covered under the ADA. If your condition is on that list that may be grounds for you to be protected under the ADA.
Cannabis like any other prescription drug can be the cause of termination if it impedes your ability to do your job. More important than anything it’s important to examine your company’s specific policy and any paperwork you may have signed because that is the clearest letter of the law on this issue.
In those cases, if you have a looming drug test you may decide to disclose and communicate with your employer or HR department beforehand. However, it’s important to remember that once you’ve disclosed that information it can officially be on the record with your employer.
Can An Employer Deny Employment For Medical Marijuana?
Generally, the law stands that you should not be discriminated against with regard to employment. There are laws governing a ton of personal questions that potential employers cannot directly ask you.
However, this is a complex issue. With cannabis federally illegal and no specific laws on the book in some states it can be challenging.
Some states have enacted legislation to protect employees against medical marijuana discrimination. In a few states like California recreational cannabis use is protected against discrimination. The full list is available on California’s chapter of NORML website. National Drug Sceening.com also has a list of marijuana considerations and laws by state.
Are Medical Marijuana Users’ Employment Protected?
Again, the issue of employment protection depends on whether there’s a law on the books that actively protects you in the case of a drug test or just offers protection for medical marijuana patients across the board.
For example, in Pennsylvania’s Medical Marijuana Act, it explicitly states:
“No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”
To be sure, be sure to check the local law for discrimination protections. The links in the prior section offer a by state listing of protections. Before fundamentally making your decision about whether to disclose to an employer, you should review both your company’s drug policy and local state or city law regarding protections for medical marijuana.
Final Thoughts
Cannabis provides people with help with pain management, battling anxiety and depression, or lessening symptoms of major medical conditions. More states are legalizing medical and even recreational cannabis. However, they do still need time to catch up with regard to employment protections for patients.
Many of the laws covering medical patients like HIPAA and ADA offer some protections that can extend to medical marijuana patients. However, outdated attitudes about cannabis and official company policies can make it a clear cut issue. Ultimately, if you think your position may be in jeopardy it may warrant asking a trusted employee or your supervisor. Another important issue is obtaining your cannabis legally. You must officially have a medical marijuana card or recommendation in order to receive any protection. If you need help obtaining your medical marijuana card, contact Green Health Docs for help making the process seamless.
This article has been reviewed by Dr. Anand Dugar, an anesthesiologist, pain medicine physician, and the founder of Green Health Docs. Graduating from medical school in 2004 and residency in 2008, Dr. Dugar has been a licensed physician for almost 20 years and has been leading the push for medical cannabis nationwide.