Erica Lindsay, PharmD, MBA, Esq.
Erica Lindsay, PharmD, MBA, Esq.
Erica Lindsay, PharmD, MBA, Esq., is a healthcare attorney practicing in the greater Chicagoland area. Dr. Lindsay is active in various organizations including the American Bar Association, where she is chairwoman of the Nursing and Allied Healthcare Professionals Task Force, Illinois State Bar Association, Health Care Compliance Association, American Society of Pharmacy Law, American Intellectual Property Law Association and the Chicago Bar Association. She has recently published Protect and Empower: The Career Survival Guide for Healthcare Professionals. Dr. Lindsay can be contacted at erica.lindsay1@gmail.com

Should Pharmacists Be Permitted to Use Medical Marijuana for Qualifying Conditions?

JULY 12, 2016
In recent months, nurses, pharmacists, and physicians have had their licenses suspended due to cannabis use.

Although many states have passed laws legalizing cannabis for qualifying medical conditions, medical boards continue to crack down on it because it’s still a federally controlled substance.

To date, 23 states, plus Guam and the District of Columbia, have approved medicinal marijuana use: Alaska, Arizona, California, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington. Each state that has elected to legalize marijuana use for medicinal purposes has identified which qualifying conditions can be treated when recommended by the patient’s physician.

Qualifying conditions for medical marijuana use include AIDS, Alzheimer’s, agitation, arthritis, cachexia, cancer, Crohn’s disease, epilepsy, glaucoma, hepatitis C, HIV, migraines, multiple sclerosis, persistent muscle spasms, seizures, nausea, and pain.

States that recognize some or all of these conditions for medical marijuana use are Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont, and Washington. Notably, California includes a category for other illnesses that may not have been identified but for which medical marijuana provides relief.

All medical marijuana use for qualifying illness should be documented by a physician to illustrate that previous therapies were ineffective or had unacceptable side effects. Physicians are prohibited from directly writing a prescription for marijuana because federal law prohibits the practice for all Schedule I controlled substances. To avoid this conflict, however, a physician may recommend or approve marijuana use for medical purposes. For instance, a physician may note in patients’ health records that marijuana may alleviate their symptoms resulting from their qualifying condition.

“Approving” medical marijuana use may eliminate the pressure of recommending the use of an illegal drug under federal law. Some states may require physicians to validate the diagnosis by signing a statement that medical marijuana may help treat the patient’s symptoms or illness and/or attest that the physician has considered other treatments prior to recommending the drug’s use.

Nevertheless, it’s still unclear how employers should handle employees who use medical marijuana. Employers face conflicting federal and state requirements regarding drug use in the workplace. At the federal level, the Occupational Safety and Health Act requires employers to maintain a safe workplace, and federal contractors are subject to the Drug-Free Workplace Act.  

On the other hand, employers are faced with accommodating medical marijuana use if an employee qualifies under the federal Americans with Disabilities Act or state law, like as Michigan’s Persons with Disabilities Civil Rights Act. If an employee with a disability is disciplined for using medical marijuana, it could lead to a claim that the employee was disciplined for the disability, rather than the marijuana.
 
It’s unclear whether an employer can take disciplinary action against an employee who tests positive for marijuana and is a legal medical marijuana user. In some states that have passed medical marijuana laws, like California, Montana, Oregon, and Washington, courts have upheld the right for employers to terminate workers who test positive for marijuana despite their legal registration and prescriptions.
 
There’s also the question of whether medical marijuana use by an employee could lead to professional malpractice or negligence. Michigan’s medical marijuana law specifically states qualified individuals aren’t permitted to “undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice.” The statute further states those with medical marijuana prescriptions may not “operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.”  

Meanwhile, US Department of Transportation regulations, which set strict drug-testing guidelines, would likely take precedence over any state laws allowing medical marijuana possession or use. However, it’s unclear whether health care professionals should be held to the same standard as employees who operate machinery or motor vehicles.

If a pharmacist is liable for negligence while providing a professional service, an insurance claim may be filed to pay for any damages arising from the wrongful act. However, if the claim arises from any insured individual’s “intentional, willful, or deliberate noncompliance with any statute, regulation, ordinance, administrative complaint, or notice of violation, notice letter, executive order, or instruction of any governmental agency or body; or any claim arising from an illegal, dishonest, fraudulent, criminal, or malicious act actually or allegedly committed by any insured,” the claim will be rejected. Therefore, if pharmacists test positive for marijuana or admits to its use, their insurer won’t likely pay their claims.

With medical marijuana’s legalization in many states, pharmacists should be allowed to use it, provided that its use doesn’t impact their ability to safely provide care to patients. However, until laws are changed at both federal and state levels to grant health care providers protections against positive drug tests, pharmacists may not be able to use medical marijuana, even for qualifying conditions.


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