Healthcare Employees and Medical Marijuana

 

 In 1970 Comprehensive Drug Abuse Prevention and Control Act classified THC, the active ingredient in marijuana, as a Schedule 1 drug. That is, one that has a high potential for abuse, no currently accepted medical use, and lacking accepted safety standards for use under medical supervision

 

In 2014 the Florida Legislature passed and Governor Scott signed into law the "Compassionate Medical Cannabis Act". This statute authorized physicians who were specifically licensed to do so, to prescribe a form of marijuana known as "Charlotte’s Web" to a:

 

qualified patient suffering from cancer or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms; order low-THC cannabis to alleviate symptoms of such disease, disorder, or condition, if no other satisfactory alternative treatment options exist for the qualified patient …

 

§381.986(2), F.S.

 

 It seems likely that there will be efforts to expand the use of medical marijuana in Florida to additional individuals who might benefit from using this drug in treating their physical or psychological ailments. Whether or not those efforts succeed, healthcare providers face a difficult decision concerning how to deal with their employees and independent contractors for whom a physician has prescribed marijuana.

 

Drug testing has become a routine function of many healthcare providers’ HR department responsibilities. Healthcare professionals found to have performed their duties while intoxicated or under the influence of a prohibited drug may be referred to the Florida Impaired Practitioners Program.

 

Does, or should, the outcome change when a healthcare practitioner or student is found to be taking marijuana, as authorized under Florida law?

 

On the one hand, the employee is doing nothing that other employees are permitted to do – taking a prescribed medication to treat a medical or psychological condition. On the other hand, the FDA continues to classify marijuana as a Schedule 1 drug, one having no accepted medical use. Consequently, prescribing, dispensing, and possessing marijuana remain violations of federal law- notwithstanding state statutes. Indeed, the physician who prescribes, the party who dispenses, and the patient who receives marijuana pursuant to Florida’s Compassionate Medical Cannabis Act bear the risk, however remote, that the FDA or another federal agency might seek to sanction this activity.

 

At least one state has considered the issue. Significantly, that case did not involve a healthcare provider. Instead, it involved an employee of Dish Network in Colorado who was discharged after testing positive for marijuana. The employee, a quadriplegic, used medically prescribed marijuana outside of work hours. Notwithstanding a statute protecting workers engaged in any "lawful activity" outside of the work environment, in a unanimous decision the Colorado Supreme Court held that because it violated federal law this individual’s use of marijuana did not meet the statute’s requirements and his discharge was justified.

 

Until the status of marijuana as a Schedule 1 drug is altered, Florida’s employers in general and healthcare providers in particular have a difficult decision: Ignore their employees who have prescriptions to use marijuana, or treat these cases in the same manner as other instances of alcohol or drug abuse. Will that approach change if the FDA alters the status of marijuana? In any case, all employers need to focus on this issue, review their employee handbooks, decide which position they want to take, and make their employees and independent contractors aware of how they will be treated if they are prescribed marijuana in Florida.