Refusing to hire because of medical marijuana use

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?

Under the Texas Compassionate Use Act, individuals with certain medical conditions are eligible to be legally prescribed low-THC cannabis, also known as medical marijuana. While Texas may allow for limited medical use of cannabis, federal law doesn’t recognize any legitimate medical use and treats marijuana as any other illicit drug.

Importantly, federal law regulates safety sensitive positions in transportation, such as truck drivers, bus drivers, and heavy equipment operators. So, companies with certain safety sensitive positions must follow the federal Department of Transportation (DOT) drug testing regulations. Under DOT regulations, marijuana will continue to be tested for, regardless of a state cannabis policy.

In addition, the DOT’s regulations don’t authorize medical marijuana as a valid explanation for an employee’s positive drug test result. Therefore, if an applicant uses marijuana, even with a medical prescription, this will negatively impact their ability to pass a pre-employment drug test for a DOT regulated position.

Prior to testing, employers should give all applicants a written policy that contains a general statement of their drug use policy and whether the applicant’s position is subject to DOT regulations.