What to do When a Job Candidate Presents a Medical Marijuana Card

It’s happening more and more frequently: a job candidate whips out a medical cannabis card thinking it will give them a pass on a drug test that includes marijuana.

“Exactly the opposite is true,” says employment law attorney Andrew Pepper of Jackson Lewis P.C. “Nothing in Hawaii’s medical marijuana law requires that employers must accommodate an employee’s use of medical marijuana in the workplace.  Nor does it shield an employee from termination if he uses marijuana in violation of an employer’s standards consistent with federal law.”

Furthermore, for a company with a zero-tolerance drug-free workplace policy, the simple act of a candidate presenting the State of Hawaii 329 card raises a few urgent issues.

How to handle a hiring situation when a medical marijuana card is presented

• First, explain that your company maintains a zero-tolerance drug-free workplace policy.
• Second, inform the candidate that despite state law, marijuana remains illegal at the federal level—and at the state level for purposes of employment.
• Third, avoid as much as possible any discussion of the applicant’s medical issues that led to him or her being prescribed medical marijuana.
• Last but not least, keep in mind that an applicant may want to continue on in the application process and choose to change their medical treatment.

This last point is especially dicey. Discussing the details of the “debilitating medical condition” for which an individual has a medical cannabis prescription creates potential liability for employers. A rejected candidate may claim disability discrimination based on what they shared, even though it was unsolicited information.

That said, employers should be aware that the law regarding medical cannabis is quickly evolving and will continue to do so for the foreseeable future. Until recently, most court decisions nationwide upheld the rights of the employer to enforce zero-tolerance policies. However, recent cases in the continental U.S. suggest that the pendulum may be swinging the other direction.

Current Hawaii law has protections for medical cannabis patients in housing and healthcare, but not at work. The law explicitly prohibits the use of medical cannabis “in the workplace of one’s employment”.  However, we must wait and see if any court cases will bring changes to state law.

Some local employers, feeling the crunch of low unemployment, have stopped testing for marijuana, but doing so may increase their liability risk. For companies that chose to retain their zero-tolerance drug-free workplace policy, take some time to review and strengthen the language.

This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney, accountant or adviser before acting upon any information in this article.