[Editor’s Note: Today’s guest post was submitted by Ethan F. Abramowitz, Esq., a disability insurance attorney who represents disabled physicians, dentists, lawyers, and business executives. I thought it was an interesting enough topic that it would be worth running this guest post. Marijuana is now fully illegal in only 8 states and recreational use is legal in 11. Certainly there are doctors using it for recreational and/or medicinal use. It is best that they understand the consequences of doing so. We have no financial relationship.]
As factions within the medical community continue to debate the topic of cannabis, the past few years have reigned in dramatic changes in state laws governing recreational and medicinal usage. Currently, eleven states, and Washington, DC, have passed laws legalizing recreational marijuana. Similarly, 33 states have passed legislation legalizing medicinal marijuana and expanded the medical conditions that qualify for same. As the pro-marijuana movement continues to gain traction, even local governments have acted by decriminalizing the possession and use of small amounts of marijuana.
The Pro-Cannabis Movement
While the advancement of the pro-cannabis movement, on the state level, continues to grow, the federal government/law still considers marijuana a dangerous illegal drug and questions its acceptable medicinal value. Specifically, marijuana, like heroin, LSD, ecstasy, and psychedelic mushrooms remains classified as a Schedule 1 narcotic under the Controlled Substances Act.
The pro-cannabis movement continues to question this designation and has generated a groundswell movement in local and state governments for legalization. However, on the federal level, many within the medical community continue to challenge the medicinal benefits of marijuana, citing a lack of objective medical studies/testing supporting medicinal benefits. In addition to challenging the medicinal benefits of marijuana, these physicians and anti-cannabis groups cite widespread concerns regarding the potential adverse health consequences and addiction.
False Sense of Security for Physicians Using Marijuana
Regardless of state laws legalizing medicinal and/or recreational marijuana usage, federal law enforcement agencies, operating under the Department of Justice, have the legal authority to investigate and prosecute medicinal and recreational marijuana users. And while the federal government has reduced its enforcement of marijuana in these states, the conflict between state and federal law results in a false sense of security for physicians.
Specifically, the federal government’s legal authority over state law is derived from the Federal Constitution’s Supremacy Clause. In short, the Supremacy Clause makes clear that federal law supersedes and trumps conflicting state laws. And while a state law might allow individuals, including physicians, to walk into a dispensary and purchase marijuana, these individuals still remain subject to federal law and prosecution.
The uncertainty of potential adverse consequences for “legal” marijuana use, on the state level, is more complex for physicians. As an attorney, dedicated to representing physicians with disability insurance matters, I am fielding more questions regarding this topic and the potential adverse effects on one’s medical license and ability to practice.
Marijuana Usage for “Safety-Sensitive” Occupations
Recently, clients living in states that permit recreational cannabis usage have been forwarding me articles written by employment attorneys that outline their success in “protecting employees from employers that discriminate against the legal use of marijuana.” However, the articles provided by my clients do not address physicians and do not address the added complexity for individuals employed in “safety-sensitive” occupations.
While the “safety-sensitive” designation traditionally applies to physicians, dentists, pharmacists, pilots and common carriers such as bus drivers, train conductors, and truck drivers, it identifies occupations that are more thoroughly regulated than “general occupations”. Physicians reading and relying on articles and legal opinions addressing “general occupation” employment matters are developing a false sense of security regarding how their usage, either recreational or medicinal, could affect their employment status and medical license. This is further complicated by the general lack of formal guidance from state medical boards on this topic.
Safety in “Public Consensus” for Users?
To date, state medical boards have yet to provide formal/codified regulations for physicians practicing in states that have legalized recreational and medicinal marijuana. However, there is a general public consensus amongst state medical boards, that recreational and/or medicinal marijuana usage, in and of itself, will not subject a physician to disciplinary action and/or the loss of their license.
Regardless of the “public consensus”, many of these state medical boards do not approve of medicinal or recreational cannabis usage amongst physicians. In these states, it is understood that physicians are legally able to engage in recreational and/or medicinal marijuana usage; however, they remain subject to medical board regulations and state laws prohibiting physicians from “practicing while impaired”. It is further understood that these physicians will be evaluated and assessed in the same manner as those physicians legally using alcohol and/or practicing while taking prescribed narcotic and/or mind-altering medications.
Lack of Formal Codified Policies
While these general guidelines might appear to provide direction for physicians and alleviate physician concerns, it creates another layer of analysis that physicians must consider before using medicinal and/or recreational cannabis.
To start, these guidelines are not codified and can be altered by the state medical board and/or state legislature at any time. Without a formal position that is codified, a physician’s perceived compliance with state law and/or their licensure obligations can be altered in the future and could subject them to disciplinary action.
More importantly, physicians relying on medicinal marijuana will need to assess how their underlying medical condition, and marijuana use, affects their ability to practice safely. These physicians will need to assess the effects of their comorbid medical impairments and the secondary effect of their medication regimen. Regardless of one’s subjective belief, marijuana is considered a mind and mood-altering substance that can cause functional and cognitive impairments that would render a physician impaired and unfit to practice.
Additionally, there is a divide between leading medical minds regarding a physician’s ability to safely practice while using marijuana. Those in the medical field that generally oppose the recreational and/or medicinal use of marijuana by physicians often cite studies and research that suggests regular marijuana use causes cognitive impairment and that it should not be used by physicians. These physicians, and groups, also cite a lack of objective data regarding safe limits for physicians and the effect on a physician’s ability to function the next day without being “impaired.”
These concerns are consistent with the prevailing medical opinions regarding “safety-sensitive” employees working while taking prescribed narcotic medication. Specifically, the American College of Occupational and Environmental Medicine has opined that professionals working in safety-sensitive occupations should not work while relying on narcotic pain medication. Of specific concern, the article documents the increased risk of accidents ranging from 29 percent to more than 800 percent for individuals working on narcotics.
While this article outlines the increased risk presented for those working in “safety-sensitive occupations” while actively taking a prescribed narcotic, it does not specifically assess those who do not take their medication while working or the impact on physicians. While this study does not specifically address physicians, the statistical analysis could be used against physicians seeking to practice while using marijuana, both on and off duty.
Further guidance can be gleaned from matters involving pharmacists and the actions taken by their regulatory boards. Unlike physicians, many states have codified regulations precluding pharmacists from practicing on designated medications, including narcotics. This issue was recently addressed by a federal court in Anderson-Posey v. Unum Life Ins. Co. of Am., 2017 WL 723898 (N.D. Okla. February 23, 2017).
In Anderson-Posey, the federal court looked at whether a pharmacist was able to practice safely while prescribed and relying on narcotic pain medication. In Anderson-Posey, the court held:
common sense dictates that a pharmacist working with any narcotics in her system is not practicing with reasonable skill or safety. Working as a pharmacist takes a great deal of reasoning and cognitive focus. A pharmacist must verify the accuracy of prescriptions, evaluate drug interactions, confirm that the drugs prescribed correspond to the conditions diagnosed, and accurately dispense the correct prescriptions…Moreover, the consequences of error include serious injury and death…Therefore, defendant’s decision that plaintiff could return to her job as a pharmacist while on narcotics was arbitrary and capricious because it was unreasonable and not supported by substantial evidence. Id. at 1153–54 (N.D. Okla. 2017)
While it is important to note that this state had a specific regulation precluding pharmacists from working while taking specified prescribed medications, this type of analysis could result in physicians jeopardizing their employment, medical licenses and ability to practice medicine without further evaluation from governing medical bodies. It could also result in heightened scrutiny in medical malpractice disputes.
Underlying Medical Condition Usage
It is also important for physicians to assess the underlying medical condition giving rise to their medicinal marijuana usage. For those suffering from a physiological condition, the physician will need to assess how their functional impairments affect their ability to safely practice. They will also need to assess how the secondary effects of their medicinal marijuana usage exacerbate and/or further impairs their ability to practice.
Mental Health Usage
For physicians seeking to use medicinal marijuana to treat an identified mental health-related disorder, consideration must be given to the nature and extent of the underlying mental health disorder. While PTSD and anxiety disorders are two conditions that have been identified as qualifying for medicinal marijuana in many states, these conditions, in and of themselves, can result in physicians lacking the ability to practice safely and can serve as the basis of a disability claim. A physician suffering from one of the identified mental health disorders might be deemed safe to practice while on “conventional medications”; however, the use of medicinal cannabis, in conjunction with their treatment, could render them impaired and unsafe to practice.
Similarly, recreational marijuana use by a physician is subject to the above analysis, as well as potential scrutiny regarding dependence and abuse. Just as a physician can misuse and abuse alcohol and prescription medications, a physician can misuse and abuse marijuana. A physician that is perceived as misusing marijuana would be subject to the same scrutiny and evaluations for those abusing alcohol or prescription medications. This could result in the physician being referred for a comprehensive fitness for duty evaluation and/or other evaluations requiring a hearing before their respective medical boards.
Assessing Marijuana Usage
However, unlike monitoring a physician’s use of alcohol and/or other prescribed medication, it is difficult to assess marijuana usage. Currently, there are no objective testing methods to confirm when a physician consumed marijuana and/or their level of consumption.
Marijuana stays in one’s system for up to a month, which could lead to physicians testing positive weeks after their actual usage. Unlike a blood alcohol test, a positive test for marijuana cannot determine when the physician used the substance or their degree of impairment. As such, regardless of whether a physician engages in “legal” recreational and/or medicinal cannabis use, if a question about their sobriety arises, a blood test will provide a contemporaneous positive result. This positive result, coupled with any noted observations from colleagues or patients, could serve as the basis of a disciplinary action and result in the physician being compelled to undergo additional evaluations.
These issues are further complicated for physicians working in federal hospitals and/or hospitals that receive federal funding. These employers are often required to comply with federal regulations, regardless of state law. For these physicians, their employer’s guidelines, not state law, will govern whether they can be terminated for using marijuana.
Consult With an Attorney
If you are a physician that is currently “legally” using cannabis while actively employed and engaged in the practice of medicine, you should consult with an attorney qualified to discuss the potential ramifications. The standards applied to “general occupations” do not apply to you and a brief consultation could serve to protect your job, license and livelihood.
What do you think? What do you think are the risks to marijuana-using physicians? Comment below!
 See HegmannKT, Weiss MS, Bowden K, et al. ACOEM practice guidelines: Opioids and safety-sensitive work. JOEM. 2014; 56(7).