Drug Testing, HIPAA, and Cannabis
September 23, 2022 9:11 AM Subscribe
Suppose you apply for a job and your potential employer has you do a drug screen. The screen indicates positive for cannabis. Now suppose cannabis is legal in your state for medical and recreational use ...
Are there HIPAA implications, i.e. is the employer not allowed to ask you if you're taking cannabis for medical reasons?
And if they can't ask, and you might actually be taking it for medical reasons (or not), can they still legally reject your job application over this?
Are there HIPAA implications, i.e. is the employer not allowed to ask you if you're taking cannabis for medical reasons?
And if they can't ask, and you might actually be taking it for medical reasons (or not), can they still legally reject your job application over this?
It's still illegal federally, so in a lot of federally-regulated industries they're required to reject you. There's no federal loophole for medical use.
posted by chesty_a_arthur at 9:19 AM on September 23, 2022 [8 favorites]
posted by chesty_a_arthur at 9:19 AM on September 23, 2022 [8 favorites]
I am not a lawyer. But I think the lawyers will likely want to know: is the job something where impairment is an issue if you could be impaired by cannabis on the job (e.g. driving/pilot)? If so I'm not sure medical vs recreational would matter.
posted by If only I had a penguin... at 9:20 AM on September 23, 2022 [2 favorites]
posted by If only I had a penguin... at 9:20 AM on September 23, 2022 [2 favorites]
This is going to depend on your jurisdiction.
https://www.nolo.com/legal-encyclopedia/state-laws-on-off-duty-marijuana-use.html
posted by ftm at 9:20 AM on September 23, 2022 [4 favorites]
https://www.nolo.com/legal-encyclopedia/state-laws-on-off-duty-marijuana-use.html
posted by ftm at 9:20 AM on September 23, 2022 [4 favorites]
Similar link from Paycor: https://www.paycor.com/resource-center/articles/pre-employment-drug-testing-laws-by-state/
posted by chesty_a_arthur at 9:22 AM on September 23, 2022
posted by chesty_a_arthur at 9:22 AM on September 23, 2022
I'm no lawyer, but the general rule is that only covered entities have HIPAA obligations. I don't think HIPAA regulates this situation.
posted by BungaDunga at 9:27 AM on September 23, 2022 [7 favorites]
posted by BungaDunga at 9:27 AM on September 23, 2022 [7 favorites]
I am not even sure that the legal status of cannabis matters in this scenario. I have worked at a place where a positive screen for nicotine was a valid reason for denying employment, even if the applicant claimed to be using smoking cessation products rather than tobacco. This was in the United States, in a solidly "blue" area (Portland, Oregon) within the 2010s.
Basically, a prospective employer can decline to hire someone for any reason other than membership in a protected class. Even if cannabis users are not breaking the law, they aren't a protected class.
My understanding is that HIPAA means that the results of an employment drug screen cannot be released to law enforcement without a court order, however. It's also possible that the employer is only informed that the screen was positive, not what it was positive for.
Here's some more information about HIPAA as it relates to employment drug testing.
posted by easy, lucky, free at 9:29 AM on September 23, 2022 [8 favorites]
Basically, a prospective employer can decline to hire someone for any reason other than membership in a protected class. Even if cannabis users are not breaking the law, they aren't a protected class.
My understanding is that HIPAA means that the results of an employment drug screen cannot be released to law enforcement without a court order, however. It's also possible that the employer is only informed that the screen was positive, not what it was positive for.
Here's some more information about HIPAA as it relates to employment drug testing.
posted by easy, lucky, free at 9:29 AM on September 23, 2022 [8 favorites]
Best answer: Basically, a prospective employer can decline to hire someone for any reason other than membership in a protected class. Even if cannabis users are not breaking the law, they aren't a protected class.
people with a disability are a protected class, aren't they? (not only am I not a lawyer, I'm Canadian where "protected class" is not a thing). So a person using cannabis for medical reasons would be effectiely discriminated against for a disability. But you can't get that protection without disclosing.
posted by If only I had a penguin... at 9:32 AM on September 23, 2022 [2 favorites]
people with a disability are a protected class, aren't they? (not only am I not a lawyer, I'm Canadian where "protected class" is not a thing). So a person using cannabis for medical reasons would be effectiely discriminated against for a disability. But you can't get that protection without disclosing.
posted by If only I had a penguin... at 9:32 AM on September 23, 2022 [2 favorites]
Response by poster: If only I had a penguin...
Yes, that's exactly what I was getting at, except you explained it better!
posted by ZenMasterThis at 9:37 AM on September 23, 2022
Yes, that's exactly what I was getting at, except you explained it better!
posted by ZenMasterThis at 9:37 AM on September 23, 2022
A bit of an aside, but as a person who started his career working in an analytics lab that processed a huge volume of these extremely shitty comercially-available drug test kits that most companies rely on for this process: if you get a positive result, your first response should be to contest it. Contest it! Pasting in a previous response about this:
Urine tests, especially commercial off-the-shelf ones, are very shitty and have a tendency toward false positives (as opposed to high-power techniques like liquid chromatography / mass spectrometry). For non-marijuana drugs, this is a huge problem (e.g. "[t]he false positive rate for amphetamine/methamphetamine was ∼14%, ∼34% for opiates (excluding oxycodone), 25% for propoxyphene and 100% for phencyclidine and MDMA immunoassays" in one recent study). Even for marijuana, though, the figures are debated (the last time I worked with a field method, using spit instead of urine, the rates were about 85% for both sensitivity and specificity).
The only thing I can think to ask you is what kind / brand of test kit was this? All the ones I know about have an in-built control readout that will tell you if some of the predictable problems have arisen and the test result isn't valid (like this one). That said, those control measures don't account for everything and, yes, entire batches of test kits can be produced poorly or contaminated en masse.
I would say, that test result is wrong and those tests are known to be faulty so you need to retest me as many times as it takes to not get a shitty response. Companies have faced legal action for this stuff. A confident bluff is very much in order, no matter how legal weed is in your jurisdiction. Jeez I get so steamed about this stuff! Those tests are so, so criminally shitty that I cannot fathom how many people have been fired or punished because their employer doesn't know what a false positive is. Anything you can do to help your employer learn that this dumb testing approach might land them in legal hot water is a labor-forward step!
Quietly descends from soapbox and nods politely to all of you before exiting.
posted by late afternoon dreaming hotel at 9:48 AM on September 23, 2022 [27 favorites]
Urine tests, especially commercial off-the-shelf ones, are very shitty and have a tendency toward false positives (as opposed to high-power techniques like liquid chromatography / mass spectrometry). For non-marijuana drugs, this is a huge problem (e.g. "[t]he false positive rate for amphetamine/methamphetamine was ∼14%, ∼34% for opiates (excluding oxycodone), 25% for propoxyphene and 100% for phencyclidine and MDMA immunoassays" in one recent study). Even for marijuana, though, the figures are debated (the last time I worked with a field method, using spit instead of urine, the rates were about 85% for both sensitivity and specificity).
The only thing I can think to ask you is what kind / brand of test kit was this? All the ones I know about have an in-built control readout that will tell you if some of the predictable problems have arisen and the test result isn't valid (like this one). That said, those control measures don't account for everything and, yes, entire batches of test kits can be produced poorly or contaminated en masse.
I would say, that test result is wrong and those tests are known to be faulty so you need to retest me as many times as it takes to not get a shitty response. Companies have faced legal action for this stuff. A confident bluff is very much in order, no matter how legal weed is in your jurisdiction. Jeez I get so steamed about this stuff! Those tests are so, so criminally shitty that I cannot fathom how many people have been fired or punished because their employer doesn't know what a false positive is. Anything you can do to help your employer learn that this dumb testing approach might land them in legal hot water is a labor-forward step!
Quietly descends from soapbox and nods politely to all of you before exiting.
posted by late afternoon dreaming hotel at 9:48 AM on September 23, 2022 [27 favorites]
People have some frankly bizarre ideas about HIPAA. It means that covered entities can't disclose your medical data without your consent. It has zero bearing on what your employer can ask you.
As incredibly stupid as the whole situation is, ignoring violations of federal law is not going to be considered a reasonable accommodation under federal law. Depending on where you live, you might have a cause of action under state law, which may or may not offer greater or lesser protections than federal law.
posted by praemunire at 10:00 AM on September 23, 2022 [17 favorites]
As incredibly stupid as the whole situation is, ignoring violations of federal law is not going to be considered a reasonable accommodation under federal law. Depending on where you live, you might have a cause of action under state law, which may or may not offer greater or lesser protections than federal law.
posted by praemunire at 10:00 AM on September 23, 2022 [17 favorites]
I think most people misunderstand the purpose and focus of HIPAA: The purpose of this law is mostly to ensure that healthcare providers are being responsible caretakers of patient privacy. So for example, if the company that administers your drug test broadcasts your results to random employers, that violates HIPAA. On the other hand, if an employer contracts with a lab to provide drug testing to prospective employees, and those prospective employees voluntarily consent to this procedure, HIPAA has nothing to say on this topic. I think it sucks that employers in California are still drug testing prospective employees for cannabis, but HIPAA isn't at play in this.
posted by latkes at 10:02 AM on September 23, 2022 [6 favorites]
posted by latkes at 10:02 AM on September 23, 2022 [6 favorites]
OK, I'm a little worried that you best-answered me because I cannot stress enough that I don't actually know what I'm talking about (yeah, best practice in this case is usually to be quiet, but i note that my first response was to ask a question possibly helpful to people who did know what they're talking about, and my second was just to clarify what someone else said).
posted by If only I had a penguin... at 10:09 AM on September 23, 2022 [5 favorites]
posted by If only I had a penguin... at 10:09 AM on September 23, 2022 [5 favorites]
It's actually the ADA that covers certain disclosure privacy rules. I had to research it when a small business I worked for told us they needed a list of all the mediations we were on in order to better shop for insurance coverage.
Drug testing is a particularly weird situation with regard to these restrictions, and I honestly don't know if there's ever been any especially sturdy legal precedent set that these tests are an invasion of privacy/forcing disclosure of medical conditions.
posted by Lyn Never at 10:09 AM on September 23, 2022 [1 favorite]
Drug testing is a particularly weird situation with regard to these restrictions, and I honestly don't know if there's ever been any especially sturdy legal precedent set that these tests are an invasion of privacy/forcing disclosure of medical conditions.
posted by Lyn Never at 10:09 AM on September 23, 2022 [1 favorite]
If you are interested in US Labor law on this subject, here is a resource to check out.
Relevant excerpts:
Do Disability Laws Cover Medical Marijuana Use?
The federal Americans with Disabilities Act and Rehabilitation Act both exclude people illegally using drugs from coverage. Although several jurisdictions have legalized medical or recreational marijuana use, none require employers to permit the use of marijuana, including medical use, at work or on work time. Most also allow employers to take disciplinary action against someone who is impaired by marijuana at work, even if it was used legally while off-duty. In determining if an employee is impaired due to marijuana, employers are usually permitted to have an employee who appears to be impaired take and show a positive drug test.
What Legal Protections Exist for Employees who Use Medical Marijuana?
Some jurisdictions have ruled that an employee’s off-duty medical marijuana use is protected by medical marijuana statutes, as well as state laws prohibiting disability discrimination. These allow employees to claim disability discrimination if their employer takes an adverse action based on their legal, off-duty use of medical marijuana.
There are limits to these accommodations where they interact with federal law. Employers that receive federal grants, contracts, subsidies, or benefits, are required to prohibit the use and distribution of controlled substances like marijuana at work.
Disclaimer: IANAL
posted by elmay at 10:22 AM on September 23, 2022 [9 favorites]
Relevant excerpts:
Do Disability Laws Cover Medical Marijuana Use?
The federal Americans with Disabilities Act and Rehabilitation Act both exclude people illegally using drugs from coverage. Although several jurisdictions have legalized medical or recreational marijuana use, none require employers to permit the use of marijuana, including medical use, at work or on work time. Most also allow employers to take disciplinary action against someone who is impaired by marijuana at work, even if it was used legally while off-duty. In determining if an employee is impaired due to marijuana, employers are usually permitted to have an employee who appears to be impaired take and show a positive drug test.
What Legal Protections Exist for Employees who Use Medical Marijuana?
Some jurisdictions have ruled that an employee’s off-duty medical marijuana use is protected by medical marijuana statutes, as well as state laws prohibiting disability discrimination. These allow employees to claim disability discrimination if their employer takes an adverse action based on their legal, off-duty use of medical marijuana.
There are limits to these accommodations where they interact with federal law. Employers that receive federal grants, contracts, subsidies, or benefits, are required to prohibit the use and distribution of controlled substances like marijuana at work.
Disclaimer: IANAL
posted by elmay at 10:22 AM on September 23, 2022 [9 favorites]
I'm not a lawyer, but as I understand CT's law: medical cannabis use is protected, but recreational use is not insofar as employers can continue to discriminate against cannabis users if they provide a written policy that complies with state law. Absent a written policy, employers cannot discriminate against cannabis users (except under certain circumstances, like DOT-regulated positions).
That said, employers are still allowed to prohibit possession or use of cannabis at the workplace, and these are only state-level protections (so don't be a dummy like the firefighter who tried to sue under the ADA).
posted by uncleozzy at 10:51 AM on September 23, 2022
That said, employers are still allowed to prohibit possession or use of cannabis at the workplace, and these are only state-level protections (so don't be a dummy like the firefighter who tried to sue under the ADA).
posted by uncleozzy at 10:51 AM on September 23, 2022
Starting in January 2024, it will be illegal for California employers to discriminate against employees or job applicants for using cannabis outside of work.
posted by mbrubeck at 11:08 AM on September 23, 2022 [2 favorites]
posted by mbrubeck at 11:08 AM on September 23, 2022 [2 favorites]
Response by poster: OK, I'm a little worried that you best-answered me
posted by If only I had a penguin...
Only because you re-framed my original question for me better than I originally asked it. That's all!
posted by ZenMasterThis at 1:13 PM on September 23, 2022
posted by If only I had a penguin...
Only because you re-framed my original question for me better than I originally asked it. That's all!
posted by ZenMasterThis at 1:13 PM on September 23, 2022
(Consider that pilots may be kept from flying if they take certain medications. Your employer can that marijuana use is incompatible with the job for whatever reason. ADA only protects reasonable accommodations, not all).
posted by raccoon409 at 4:57 PM on September 23, 2022
posted by raccoon409 at 4:57 PM on September 23, 2022
Lyn Never is right that there are other laws to look at. HIPAA wouldn't apply here, I don't think.
posted by slidell at 5:14 AM on September 24, 2022
posted by slidell at 5:14 AM on September 24, 2022
Are there HIPAA implications, i.e. is the employer not allowed to ask you if you're taking cannabis for medical reasons?
Healthcare lawyer here (but not YOUR lawyer): This is not how HIPAA works. Your employer can ask/fail to hire based on your cannabis use, depending on your industry/job function and where you live.
posted by simonelikenina at 2:18 PM on September 25, 2022
Healthcare lawyer here (but not YOUR lawyer): This is not how HIPAA works. Your employer can ask/fail to hire based on your cannabis use, depending on your industry/job function and where you live.
posted by simonelikenina at 2:18 PM on September 25, 2022
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