Do Employee Drug Tests Violate HIPAA Privacy Laws?
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There are all kinds of laws, statutes, regulations and ordinances on the books in America. Too many in fact. Some are good, some are bad, and some are grey.

When you apply for a job, or when you take random drug screens at work are your medical privacy (HIPAA) rights being violated?

Federal law does not preempt contrary or more stringent state law requirements regarding our protected health information. State laws which force patients to share their specific medical conditions (like Michigan) could be of concern to employers and defined as more stringent areas of privacy concerns with medical records. Feds should also be concerned that medical records are warehoused at brand new administrative and processing departments, dispensaries and separate databases.

The following regulation is not law, was not subjected to open discussion, and the regulation is definitely stale (14 years old predating 22 recent States approving medical cannabis legislation). https://www.gpo.gov/fdsys/pkg/CFR-2003-title45-vol1/xml/CFR-2003-title45-vol1-sec160-203.xml

28 states and D.C have passed medical marijuana legislation and are in violation of long-established HIPPA laws enacted by US Congress for not stopping pre-employment drug testing for marijuana.

I really want this job but your urinalysis tests for pot would compel me to disclose my history with cancer before peeing in this cup (HIPAA violation). If I do remain silent and pee in your cup, then not offered employment I am discriminated for having cancer or a disability.

Pre-employment testing for illegal drugs is permitted so long as it is nondiscriminatory and adheres to certain standards. However, alcohol testing may only take place after an employment offer is made, and must be job-related and consistent with business necessity. While case law is fresh in this area, states like Colorado and Washington could drop any pre-employment testing for marijuana (medical or not).

Employers can ask, do you use any drugs illegally. Patients “Just Say No”.

Do I have to disclose an injury or illness that is not obvious during an interview or indicate on a job application that I have a disability?

The Americans With Disabilities Act (ADA) does not require you to disclose that you have any medical condition on a job application or during an interview. Once an employer makes a job offer, it may ask you questions about your medical conditions, and perhaps even require you to take a medical examination, as long as it requires everyone else in the same job to answer the same questions and/or take the same medical examination before starting work.

Perhaps a good employment lawyer can force this issue further. My advice, next time you are given a cup to pee in, just say no. Explain to your prospective employer that you will not allow them to violate any of your protected rights. States need to step up in protecting our privacy rights absent Federal guidance.

Most importantly, the US Government needs to recognize the vulnerabilities in privacy rights of 70% of the population who now could potentially be enrolled in a state cannabis program.

Dan Drevin
Dan Drevin
Patient advocate and I also run a financial services advisory firm in Metro Detroit.


  1. Avatar DIana says:

    I applied for a job when in for orientation when I got there about an hour into orientation they informed us that we had to take a drug screen in the in their office I’m not in a medical supervise place I had to inform them that I have a prescription for medical marijuana. I have not heard back from them concerning placement when I contacted them they said they had they did not have anything. They knew I was driving 50 miles for orientation I knew I would make myself available to work in that area as a caregiver. I feel it they had been honest with me concerning a drug test I never would’ve gone back through orientation I also feel that it is a HIPAA violation they are not medical personnel that I had to disclose my medical issue with them.

  2. Avatar Chad owen says:

    My company Walmart has a zero tolerance to drug use . I am a medical marijuana patient and we have random drug tests so if I provide my prescription card prior to the test and and don’t say anything else am I protected under hipaa.

    • Avatar Jen Gallivan says:

      Chad Owen, I have been at a position for 2 months and I was fast tracked on board, so not much in the way of formal offers or orientation. Since being with them I have been on OT and offered a promotion…well I have come to learn that they also randomly drug test. I’m a registered card-holding medical cannabis patient. If I get called up to go test and you were me, how would you play it. I love this job and I’m terrified I’m going to get fired.

  3. Avatar Tracy Cordova says:

    my employeer dose rendom drug test on employees when ever they want with oit cause. I am not a user nut I want to kmow my rights.

  4. Avatar Tracy Cordova says:

    my employer dose randoms on employees with out cause. I am not a user But I want to know my rights.

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