HIPAA and Drug Tests and Amendment 2, Oh My!
It's official. As of Tuesday, November 6, 2018, if you have a Missouri business, you may find yourself facing issues related to medical marijuana. But what do you have a right to ask about, how are you and your employees protected and what are your rights under the new laws? Here's a quick look at how HIPAA, Amendment 2, employment law and work-related drug testing intersect under the new laws.
Amendment 2 covers many areas to help your company adapt to the new law. Like other intoxicating substances, employees are not covered if they are negligent in their duties, such as driving a motor vehicle or operating heavy machinery while using medical marijuana. Unfortunately, the new law doesn't specify what qualifies as "under the influence". If an employee legally using medical marijuana is in a traffic accident, you could be held liable even if it has been several days since the employee used marijuana and they're clear-headed. Though you may be exonerated in court, there are still legal fees to take into account. Finding alternative tasks for employees may be helpful to avoid this type of situation until it's been tested in the court system.
The amendment does go to lengths to protect employers from issues related to drug testing and employment. It specifically doesn't protect employees who have to meet federal requirements, so if you are required by federal law or otherwise choose to let an employee go due to failing a drug test, even when it's related to medical marijuana, you're protected from wrongful termination or discrimination. Though HIPAA protects employees from having to discuss medical issues, that doesn't necessarily mean that an employee who fails a drug test can automatically be protected from losing their job under HIPAA or ADA requirements.
Though Amendment 2 will require some testing in the court system to determine its exact parameters, these guidelines should help you avoid trouble should you face a situation in your business where an employee is licensed to use medical marijuana under the new laws. If you need help developing company policies to deal with the changes created by Amendment 2, AccountRely is happy to help. Please feel free to contact us today to be connected to one of our many experienced business professionals to start working on a plan of action for your Missouri business.