I'm on Medical Marijuana. Can I Be Fired for a Positive Drug Test?

Carolyn Buppert, MSN, JD

Disclosures

February 02, 2018

To submit a legal/professional nursing question for future consideration, write to the editor at lstokowski@medscape.net (include "Ask the Expert" in subject line).

Question

Cannabinoids and Nursing: Do They Mix?

We received the following legal question from a reader:

Can a nurse who has a medical condition that is helped by cannabinoids and who has a marijuana medical-use card work without repercussion from a positive employee drug screen?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

No. Employers may decide to have zero tolerance. Nurses have been fired for testing positive for THC, even though the nurse had a medical use card. Here is a news report of such a case: "Health worker fired over use of medical pot."

An additional consideration is what your state's Board of Nursing will do if you are terminated and if the employer reports you to the Board for having a positive drug screen. You don't have to tell the Board of Nursing that you have a medical marijuana card. But if an employer reports you to the Board, that will trigger the Board of Nursing to investigate. A board's responsibility is to protect patient safety. The board will focus on impairment and may interview coworkers to ask about your attention, affect, and competence at work.

Potential effects of marijuana include[1]:

  • Short-term memory problems

  • Impaired thinking and/or delayed decision-making

  • Loss of balance and coordination

  • Decreased concentration

  • Changes in sensory perception and/or distortions in time

  • Impaired ability to perform complex tasks

  • Decreased alertness

  • Decreased reaction time

  • Paranoia

  • Drowsiness

  • Increased appetite

  • Impaired tracking ability

Imagine an investigator querying your colleagues: "Have you ever noticed that NP [insert your name] has had a memory problem, was slow in decision-making, wasn't concentrating at all times, was drowsy, or had a slow reaction time?" It is foreseeable that someone might have noticed something, whether or not your after-lunch drowsiness was related to your marijuana use or your lunch. It could be difficult to convince a board that you never were impaired at work.

Furthermore, impairment can be related to medical conditions, whether or not a nurse is on cannabinoids. Nurses have been reported to boards of nursing when their reaction time or decision-making is thought to be slow or questionable, and when the nurse had an underlying medical condition that may have caused the problem. The board of nursing's mission is to protect patients, and the board may ask a nurse to surrender his or her license if a medical condition is seen as affecting the nurse's ability to provide safe care. Qualifying conditions for medical marijuana cards may include:

The question to ask yourself, if you need to be on cannabinoids, is: Does my medical condition that qualifies me for a medical-use card impair me from providing high-quality care at work?

Some nurses will say that without their medical marijuana they aren't at their best, but with marijuana they are. That's an argument worth presenting, if faced with a termination or board investigation, but be prepared to back up that argument, perhaps with an evaluation documented by an expert. I'm afraid that I have no expertise on what evidence or evaluation, if any, would convince a board.

Finally, given the current federal stance on medical marijuana—that it is illegal—and given the regulatory and public expectations of nurses, a nurse with a need for medical marijuana is not in a secure position, work-wise.

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