Pennsylvania’s Medical Marijuanna Law and the Medical Licensee

Medical marijuana is close to reality in Pennsylvania. However, a reality check is necessary at this time. Do not be mistaken and think that as a licensed professional you are not subject to losing your job or license if you test positive for legalized THC in your blood while on the job.

This blog will discuss various provisions of Pennsylvania’s new medical marijuana law and it’s enforcement on Pennsylvania licensed professionals. This blog will not discuss violations of the Medical Marijuana Act by licensed practitioners and patients.

Pennsylvania’s MEDICAL MARIJUANA ACT is found at 2015 Bill Text PA S.B. 3, 2015 Bill Text PA S.B. 3.  The main provision of the Act as it pertains to use of marijuana by a licensee is § 510, (4).  The clause states that:   “A PATIENT MAY BE PROHIBITED BY AN EMPLOYER FROM PERFORMING ANY DUTY WHICH COULD RESULT IN A PUBLIC HEALTH OR SAFETY RISK WHILE UNDER THE INFLUENCE OF MEDICAL MARIJUANA. THE PROHIBITION SHALL NOT BE DEEMED AN ADVERSE EMPLOYMENT DECISION EVEN IF THE PROHIBITION RESULTS IN FINANCIAL HARM FOR THE PATIENT.

This provision does not have THC blood level nano gram cut off for the amount of medical marijuana in patient/professional’s blood.  The language “Under the Influence” is repeatedly used.  Every drug/alcohol expert (not PHMP assessor) knows that a “Under the Influence” blood level is different for every person. This means any active medical marijuana patient/user who is a professional licensee is still subject licensing board prosecution and employment related disciplinary action for allegedly practicing “Under the Influence” of THC in violation of their licensing regulatory statute, regardless of what this provision provides.

Experts of what THC levels constitute “Under the Influence” mean will now abound.  Employment based random drug tests based upon appearances of “Under the Influence” will become rampant.  Each such positive drug test, with drug expert conclusions on what is “Under the Influence of THC” will become a reportable action to the professional board, which can still take action against the licensee.  This is especially true for the licensee who does not possess a medical marijuana patient card and tests positive for THC.  This conduct will still result in Board prosecution because marijuana use without a registration card is still illegal regardless of whether criminally charged or when THC is removed from Pennsylvania’s controlled substance schedules.

There are two provisions of the Act that support this interpretation. The first is § 1101.  This section states GRAPP governs enforcement of the Act. Grapp is Pennsylvania’s General Rules for Administrative Practice and Procedure. These  are the same procedural and substantive rules that apply to professional license prosecutions. As such, the same hearing officers that are familiar with how to and which disciplinary provisions apply to the licensed professional accused of violating their licensing regulations will review allegations of Medical Marijuana Act violations for either THC issues or violative conduct under the Act as a health care provider.

The next section is § 2103.  This provision deals with protections to licensees who are otherwise medical marijuana card carriers. However, the protections set forth herein only apply to proper use and application of the medical marijuana card.  Licensees accused of sharing their medical marijuana to a non-medical marijuana patient, or who engage in other criminal violations (DUI or a Drug Act violation) are still subject to disciplinary action under their own licensing regulations.

As well, subsection § 2103(B)(2) still allows for employment related disciplinary action for those professional’s medical marijuana use that places the public in harm’s way. If you are reading this blog, you are my typical medical professional client. You cannot got to work “Under the Influence” of THC even if it is a prescribed medication.  Even though working with THC in your blood is allowed and can not form the “sole” basis for disciplinary action, working in a negligent or reckless manner due to being “Under the influence” automatically puts patients at risk.  This conduct will become the basis for employment and licensing action. How and why such becomes known to supervisors is anyone’s guess.

The provision addressing this reality is § 1309.  Section 1309 does not prevent imposition any civil or criminal penalty for undertaking a task “Under the Influence” of medical marijuana when doing so would constitute negligence, professional malpractice or professional misconduct.  Further, if you are not a registered medical marijuana patient, § 2101, making primacy the Medical Marijuana Act over the Drug Act, does not protect you, the illegal possessor or distributor (sharing) of marijuana.

Finally, it cannot be overstated the potential affect on a professional’s license the suggestion of a medical disability warranting medical marijuana use.  Being a properly registered medical marijuana patient legally allows one to consume medical marijuana.  However, requesting your medical professional to verify under the Act’s procedures that you so suffer from a medical condition that medical marijuana is the primary medication may trigger Petitions for Mental and Physical Evaluation by your licensing board.

This would occur when a failed employment related drug test or occurrence is reported to the Board.  The obvious and typical “Under the Influence” allegations would be made.  While no specific direct disciplinary action could be the first salvo in a disciplinary prosecution, allegations of medical infirmity that creates a professional impairment will be lodged.  The Mental and Physical Evaluation that will follow will necessarily require production of all medical records, even those that form the basis for the medical marijuana card.  This raises the specter of a PHMP required monitoring program for which marijuana use is strictly prohibited.  Please read my other blogs on the PHMP and the 3-5 religious based abstinence program.

In sum medical marijuana is more of an indirectly but just as serious threat to many licensees who could become trapped in the maze of license prosecutions once blood tests are drawn and “Under the Influence” allegations are made.  Call me to discuss.

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