As the medical community navigates the changing landscape of medical marijuana law, an important point is often lost: Doctors get sick too. Those who suffer from ailments for which cannabis is the best known treatment, and obtain a recommendation from their own physician, face an entirely different set of threats — especially if they work for a hospital or medical group. In many states, employee drug policies still trump any laws that would otherwise permit the use of medical marijuana, says Brendan Abel, assistant legal counsel for the Massachusetts Medical Society. Employers who maintain a zero tolerance policy for drug use may legally terminate a worker if required drug testing produces a positive result for THC, the active ingredient in marijuana. "It's simply a matter of employment law," says Abel. "Physicians need to remember that just because marijuana may be legal in their state, they may still be subject to their individual employment policies." In Massachusetts, he notes, there is no protection in court for employees who have challenged their termination on the basis of using legal marijuana for medical purposes. Some states have added provisions to clarify the interplay of medical marijuana law and employment policies, while others have established case law on the topic. "We advise all physicians contemplating taking marijuana for medical use to review their employment policy with an attorney to ensure compliance," says Abel.
Separately, physicians in every state must maintain their standard of care, or risk exposing themselves to medical malpractice liability and licensing action. "Part of doing that is to be free of impairment, either from legal or illicit substances," says Abel. "Failure to meet that standard of care could have implications with their state licensing board or in a medical malpractice arena. Doctors cannot be impaired on the job."
As the law pertaining to legal cannabis continues to evolve, Abel can envision one other scenario for which doctors may face retribution. To wit: many state license applications ask, "Do you use an illegal drug?" In states where medical marijuana is legal, that would require the board to interpret whether marijuana is considered legal or illegal, and whether the doctor violated federal law. Remember, marijuana is still considered illegal under all circumstances by the federal government. Potentially, board members who review applications could also impart their own judgment as to whether a physician who obtained a legal certification for marijuana use from his doctor really required it for clinical use or is merely using it recreationally. "There are a number of considerations for doctors who use marijuana for medical purposes," says Abel, noting doctors who are medical marijuana patients themselves should perform adequate due diligence to ensure they don't expose themselves to risk.
*Editor's note: Do you believe it is ever OK for physicians to use medicinal marijuana? Tell us what you think in the comments section below.