Weight loss, medical marijuana and HIPAA protections: What you need to know

Lana Bandoim's picture

It is common for some jobs to have mandatory drug testing, but what happens when you are managing health problems with medical marijuana? Although medical marijuana is legal in 23 states as well as Washington, D.C., marijuana remains illegal on a federal level. This creates significant problems for those who depend on the product to control the numerous health issues THC seems to benefit. Can employers require information about medical marijuana use, and does HIPAA offer any protections?

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As research continues on the benefits of medical marijuana, scientists have discovered its impact on weight loss. Although the use of this drug is typically associated with the munchies, and people eating more food, studies reveal that people can actually lose weight by using medical marijuana. A paper in the American Journal of Epidemiology reveals that those who used marijuana had lower rates of obesity and lower body mass index. Another paper published in the American Journal of Medicine points out that study participants who used marijuana were skinnier and had lower blood glucose levels. Research published in Medical Hypotheses mentions that THC could be a potential treatment for obesity. There are already cases of doctors and patients using medical marijuana to deal with their weight.

As the use of medical marijuana increases, and it is applied to more health problems, there are several issues that are appearing. The facts about medical marijuana protections remain unclear, and anyone using the product, as well as doctors prescribing it, can encounter certain risks. Even if you have a medical marijuana card, your employment may be at risk. With contradictions at the federal level, the industry may find itself in front of the courts very soon.

Understanding HIPAA

Many people tend to think of HIPAA as a set of protections meant to retain patient privacy, and at its core this tends to be the most important function. Doctors are required to keep patient information confidential. In addition, they are currently transitioning to secure electronic medical records in conjunction with the HITECH Act. The combination of these rules and other restrictions under HIPAA mean that your employer is not permitted access to your medical records. If your doctor recommends medical marijuana for your weight problems or other issues, you may be able to get a state-issued card, but your employer cannot see these records.

At first glance, the rules seem to provide protection. Your employer has no right to see your medical records, so they have no legal right to know about your medical marijuana use. Unfortunately, the reality is more complicated than this. Especially since employers rarely look at your records. Instead, they simply mandate employee drug tests. This can force employees to disclose private health information that seems to circumvent HIPAA.

Federal contradictions

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There have been many conversations about the contradictions between state marijuana laws, which apply to both medical use and limited recreational use, and federal regulations. These conversations started because of the new legal recreational use at the state level. In both cases, but particularly for states that allow medical marijuana, the U.S. Department of Justice has advised against prosecuting medical marijuana use as of 2013. However, marijuana still remains a Schedule 1 controlled substance. This means it is the same classification as heroin and cocaine.

Ultimately, the federal government has left both users and employers in a difficult position. Even if the federal government recommends against prosecution, the controlled substance status remains in place. Using marijuana, even medically with state support, is still illegal at the national level.

Health aid or employment harm?

Medical marijuana has been steadily embraced as a potential treatment for numerous medical issues including weight problems, spasticity caused by multiple sclerosis, epileptic seizures and pain caused by cancer or chronic pain conditions. For those living with these conditions, medical marijuana sometimes helps in treating symptoms that have been otherwise impossible to manage. It has even allowed patients to go back to work after months or years of medically-caused unemployment. However, depending on the job, it can also be the thing that forces them right back out.

In order to deal with the conflict and help to enforce HIPAA’s privacy regulations, Illinois has begun a pilot program that prohibits employers from discriminating against medical marijuana users. The program, known as the Compassionate Use of Medical Cannabis Pilot Program Act, seems promising at first glance, but it faces the same contradictions as all marijuana regulations. Employers can still require drug testing, enforce zero tolerance workplace policies and fire anyone who tests positive for marijuana use with no exceptions for medical marijuana. They cannot discriminate up front, but they can fire you as long as they have a drug test in their hands.

Helpless under HIPAA

As illustrated by the Illinois example, the existence of drug testing for marijuana means that HIPAA protections fall short for those who use marijuana to treat health problems. Employers do not need access to employee medical files in order to establish evidence of marijuana use. Instead, they can confront employees with a positive test, and those workers have two options. They can defend themselves based on medical use or allow themselves to be fired to protect their privacy.

In response, patients are entering the advocacy scene in an attempt to make medical privacy protections meaningful again. As chronic pain sufferer and medical marijuana user Allie Haroutunian puts it, patients are struggling under “obtuse cultural norms that allow and ban possession and consumption in the same breath.” The rules are self-contradictory and make more important practices like medical privacy meaningless. Until the rules are reconciled at the federal level, medical marijuana users will continue to be punished under one law for what other laws allowed.

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