Declining to hire candidate based on medical marijuana use isn’t advised

Q: Can we decline to hire a candidate who has disclosed he uses medical marijuana because the position requires driving? And do we have to notify him why we made our decision?

More and more states are legalizing marijuana use for medical purposes. Only Idaho, Wyoming, Kansas, and South Carolina haven’t taken any action to legalize medical marijuana. Some states, such as Texas and Georgia, however, permit only the use of CBD oil. Even though many states have legalized medical marijuana, it’s still illegal under federal law.

Whether employers can decline to hire a candidate who uses medical marijuana varies from state to state. Many states prohibit discrimination based on medical marijuana use or being a registered medical marijuana patient. For example, Pennsylvania proscribes discrimination (including refusing to hire an employee) based on being a medical marijuana patient.

Moreover, courts in some states have concluded that federal and state disability laws protect employees who are registered medical marijuana users. For example, in 2017 the Massachusetts Supreme Court ruled that an employee who was fired for failing a drug test could assert a disability discrimination claim because they were a registered medical marijuana user. Similarly in 2017, the Rhode Island Superior Court ruled that an employer couldn’t decline to hire a candidate who was a legal medical marijuana patient.