Protecting licenses in a fog of law, policy and health care
A whirlwind surrounds the question of whether to legalize medical or recreational marijuana use. In most states, legislators, governors or voters have made various changes to state laws in this regard– or they have not.
Medicinal marijuana is not legal in Kentucky or South Carolina
Kentucky and South Carolina, the two states where we have offices, have not. Both medical and recreational use are still illegal there. The media widely reports that a sizable majority of Americans support decriminalization of use, especially for medical reasons. Not surprisingly, about 75% of states, the District of Columbia and several U.S. territories have legalized the use of cannabis for medical purposes, according to the National Conference on State Legislatures (NCSL). Each jurisdiction has its own regulatory scheme and may allow vastly different medicinal applications.
The federal question
Throw into this mix that federal law classifies marijuana as a Schedule I substance – the most serious classification, putting marijuana in the same category as heroin, cocaine and LSD. Schedule I drugs may not be prescribed and are defined as highly addictive, posing an elevated risk of abuse and having no accepted medical uses. Federal law criminalizes possession, distribution, trafficking and other actions involving Schedule I chemicals.
So far federal authorities have refrained from clashing with states where some use is legal, but that could change depending on who is making those decisions at the federal level and what Congress does.
Moving the needle?
A page on the Kentucky Board of Nursing (KBN) website describes a change in Kentucky law by Executive Order (linked to from the KBN page). Effective on Jan. 1, 2023, Gov. Andy Beshear has issued a blanket pardon going forward for marijuana, possession charges (8 ounces or less) for specific people possessing medical cannabis in the Commonwealth but purchased legally in another state. Specific documentation is required as well as certification from a Kentucky doctor or one from the person’s state of residence that the patient has a severe medical condition. KBN warns nurses that they are not authorized to certify medical conditions for this purpose.
What does this mean for nurses?
Presumably the pardon would apply to Kentucky nurses to protect them from possession charges in that scenario. But the broader concern is the uncertainty of whether their license or job could be at risk. Or, what if they use cannabis legally in another state and then return to Kentucky or South Carolina (or another state without legalization) and fail a drug screen?
This gets more complicated for a traveling nurse involving multiple jurisdictions and their multistate license through the Nurse Licensure Compact (NLC). Interestingly, the National Council of State Boards of Nursing has suggested the use by state nursing boards (BONs) of “right-touch regulation,” meaning that in each case the authorities should balance public and patient safety and risk with the situation. Was a patient harmed or at risk? Did the nurse use cannabis illegally or in a state where it is legal?
What about nurse licensing boards?
While the legal issues, laws and regulations, court holdings and agency policies are still developing, the KBN, South Carolina Board of Nursing (SCBN) and South Carolina Department of Labor Licensing Regulation (LLR) could take negative action against a nurse’s license even if the marijuana use was legal elsewhere.
Both state boards follow regulations that could apply here such as those involving the lack of fitness to practice, failure to adhere to the correct standard of care or caring for patients while impaired. For example, could marijuana negatively impact the nurse’s medical skills or make patient care unsafe? Or the agency could place the issue in the substance use or addiction category. Just as a nurse could not work while drunk, high or under the influence of a prescription drug, they could not do so under the influence of marijuana. However, what if the drug test showed use a week ago but there was no patient endangerment?
Concerns at work
A hospital, clinic or other nurse employer could have a zero-tolerance policy toward failed drug screenings. So, if a nurse fails or the recent legal use of cannabis becomes known (traces of THC remain much longer than those of alcohol), the employer could discipline or fire them. Marijuana is still a Schedule I drug and its use medicinally not recognized federally. The federal Americans With Disabilities Act (ADA) does not protect against disability discrimination based on prescribed cannabis nor must an employer create an accommodation.
It is important that any nurse under scrutiny for legal marijuana use should seek legal advice and representation to protect their license and job. The law is constantly in flux and how boards, legislatures and courts act could change things. An attorney will know the current state of the law and how it might apply in each scenario.