Healthcare providers who want to avoid enrollment in IPN or PRN, or suspension, after testing positive for THC, will need evidentiary and scientific support for your defense, and a defense attorney who has experience with this new and evolving area of law. Professional license lawyer explains when nurses and doctors can smoke weed in legal states, and use CBD oil products.
CBD Oil Consumption Can Result in THC-Positive Urine Screenings and Disciplinary Action in Florida
If You Test Positive for ‘Marijuana’ But Don’t Actually Use It, the Consequences Can Shatter Your Medical or Nursing Career. Here’s What You Need to Know About CBD Oil
Recently, Chapman Law Group retained several licensees who found themselves in trouble with the Florida Department of Health (DOH) for testing positive for THC in either pre-employment urine screenings or random tests at work.
The allegation is that they are unlawfully using marijuana in violation of state law, and therefore they might be impaired. What is curious, however, is that several of our clients do not make use of marijuana.
If you are a CBD oil user, you could find yourself in this predicament.
What You Should Do if You Are a Licensed Medical Professional, Consume CBD Oil, and Test Positive for THC?
If you tested THC-positive and you are also a consumer of CBD oil, it is likely that CBD oil is the reason for testing positive in your urine screening.
Medical professionals are frequently subject to urine screenings. Under the law, practitioners cannot make use of substances they are not legally permitted to use. In fact, testing positive for a substance without a prescription is a violation of the law, and the Department has the authority to impose discipline.
The worst thing that could happen is testing positive for “marijuana” when one does not actually make use of it.
What Are Consequences for a Positive Urine Screening?
The consequences of testing positive are serious. Employers are required to report those who test positive for unlawful substances. The DOH is required to investigate all complaints received, and it will open an investigation against the licensee.
At the base of the DOH’s inquiry will be whether the licensee suffers from substance abuse disorders, whether they are an impaired practitioner, and whether they are unsafe to practice and a risk to public safety.
Licensees could be required to go to IPN/PRN for evaluation and may be required to enter a monitoring contract.
Licensees can be fired from their job and find themselves having to pay for expensive evaluations or treatments without generating income. In addition, licensees could risk indefinite suspension of their license.
Often individuals refrain from hiring an attorney because they are concerned with costs. But consider the costs you might pay up front for legal defense and the costs you would end up incurring if you were forced into IPN or PRN. You should not be penalized based poor scientific understanding and unsupported allegations.
You will need an attorney who has a thorough understanding of CBD oil and its effects and a law firm who is able to produce scientific evidence in support of your defense. Chapman Law Group has both.
What is CBD?
CBD is a cannabinoid compound extracted from the flowers and buds of the hemp plant. Hemp is a close relative of marijuana; in fact, the two come from the same plant, Cannabis Sativa L.
While marijuana is classified by the DEA as a Schedule I substance and is illegal on the federal level, hemp is not. The main difference is found in the chemical properties of hemp and marijuana.
Tetrahydrocannabinol, also known as THC, is the compound known to cause intoxication effects on the body. Both hemp and marijuana have THC, but marijuana contains significant levels of THC, while the THC levels within hemp are negligible and do not have psychoactive effects.
What is CBD Oil?
CBD oil is rich with Cannabidiol, a chemical compound known as CBD, which is derived from the Cannabis Sativa L. plant .
CBD is considered an all-natural remedy for a long list of ailments. It is effective as an anti-inflammatory which can help with the treatment of pain, and is also known to have effects on the brain by alleviating symptoms of depression or anxiety, and insomnia. Perhaps even more significant, CBD was recently approved for treating serious medical conditions such as epilepsy.
Hemp CBD oil is easy to purchase, does not require a prescription from a physician and can be ordered over the internet. Particularly appealing is that this product does not cause any psychoactive effects on the body .
While the medical benefits of CBD are still not well understood, the CBD market is in full bloom. According to recent market research studies, the Hemp CBD market is expected to reach $22 billion by the year 2022. Because of ease of access, and reported medical benefits, Hemp CBD oil now is the hot new product in the homeopathic market.
What’s the Difference Between CBD Oil Derived from Marijuana and CBD Oil Derived from Hemp?
CBD oil can be extracted from both the marijuana or hemp plant. Its derivation will affect the legality of the product and whether you need a prescription.
CBD Oil from Marijuana
CBD oil derived from marijuana is considered illegal on a federal level. The DEA is unambiguous when it comes to marijuana and derivative products: they are addictive and have no known medical benefits. Because of this, they are considered a Schedule I substance — keen to LSD and ecstasy — and therefore illegal.
On the state level, the legality of Marijuana CBD oil depends where you live. For example, Florida legalized medical marijuana, making marijuana OK for medical treatment purposes.
In short, if you live in Florida, you will need a valid prescription in order to purchase Marijuana CBD oil or any product derived from the marijuana plant for that matter.
CBD Oil from Hemp
CBD oil derived from hemp is different because hemp is not considered a drug.
The 2018 Farm Bill legalized CBD derived from hemp at the federal level. The law amends the Agricultural Marketing Act of 1946 by including a definition of hemp as “the plant Cannabis sativa L. and any part of that plant […] with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” The Farm Bill also makes changes to the Controlled Substances Act (21 USC 812) and specifically legalizes Tetrahydrocannabinol found in hemp .
This mean products derived from hemp are not classified as a drug, therefore not illegal.
How Does CBD Oil Consumption Affect Medical Professionals?
Perhaps unknown to the public is that CBD oil can cause THC-positive results in urine screenings. In fact, whether you consume CBD oil derived from marijuana or hemp, you are likely to test THC-positive.
If you are a medical professional who makes use of these homeopathic supplements, as mentioned above, you should be cautioned that while hemp is not illegal, marijuana consumption is. And it will result in disciplinary action by the DOH.
The main issue is that current urine screening methods used by employers are not sophisticated enough to distinguish between CBD and THC compounds. Urine screenings today are designed to detect the body’s reactions to certain compounds, and our bodies simply react the same way to both CBD and THC. In addition, urine screenings also cannot distinguish from CBD derived from marijuana as opposed to hemp.
There is no way to prove the CBD compound was derived from hemp, which is legal, as opposed to marijuana, which is illegal.
The unfortunate result: a licensee could be subject to a Department of Health investigation for consuming a perfectly legal, commercially sold product.
At Chapman Law Group, Our Florida Health Care License Attorneys Will Fight Your CBD Oil-Based THC Impairment Allegations and Defend Your Medical/Nursing Career
If you test positive for THC, the DOH has every right to open an investigation based on suspicions of impairment. And, unfortunately, simply claiming that you do not make use of marijuana is not enough to defend yourself against impairment allegations.
If you want to avoid disciplinary action — enrollment in IPN or PRN , or, worse, suspension — you will need evidentiary and scientific support for your defense, and a defense attorney who has experience with this new and evolving area of law.
Chapman Law Group has the experience, the resources, and reputable experts for your license defense. We represent healthcare providers throughout Florida, including Miami, Tampa, Jacksonville, Tallahassee, Sarasota, Fort Lauderdale, Gainesville, West Palm Beach, Orlando, and Lakeland.
Contact us today and let us put our 35 years of experience in healthcare defense to work for you.
Can Doctors, Nurses Smoke Marijuana? (License FAQ)
Recreational and medical use of marijuana, CBD, and cannabis products are legal in many states across the US. However, there are issues that doctors, nurses, and other healthcare license holders should be aware of before they do smoke weed, pot, hash oil, honey oil, or use medical marijuana or other psychoactive THC products.
Licensed healthcare workers are subject to more restrictive marijuana use standards than the general public, even with a medical card and even in legal states, such as California, Colorado, and Washington. Our professional license defense attorney published this guide to help you avoid triggering license board or employer disciplinary actions that put your career at risk.
Marijuana, CBD, medical, and nursing license FAQ
Here our nursing license defense attorney reviews seven common questions professionals have about cannabis, cannabidiol (CBD), tetrahydrocannabinol (THC) and medical marijuana:
1) Can nurses smoke weed?
Nurses can smoke weed in legal states, like California and Colorado, as long as:
- the nurse is not impaired when treating patients,
- they follow their employer drug policies,
- they do not work for the federal government, and
- they do not violate DUI or other drug criminal laws.
The primary issue for nurses is that most nurse employers prohibit marijuana use, even when legal. Even if recreational or medicinal marijuana use is permitted under a state’s laws, employers have the right to maintain a drug-free workplace for safety-sensitive positions. They can terminate nurses who smoke weed for failing a drug test, even when they have a medical card. Each employer establishes their workplace policy for drug usage, and you should consult HR to understand yours. Employers are entitled to require a pre-employment nurse drug test as a condition to employment.
The federal government still categorizes marijuana as a Schedule I controlled substance. Federal employees are not permitted to use medicinal or recreational marijuana regardless of state laws, nor whether they have a medical card. The Veteran’s Health Administration, Department of Health and Human Services, and other federal agencies can fire nurses for using marijuana.
Testing for THC impairment is complex since no drug tests reliably measure whether someone is currently impaired. Unlike alcohol usage, a nurse can test positive for marijuana use weeks after their last usage.
Arguing that THC impairs someone typically requires combining drug test results with other objective signs of impairment to establish a totality of evidence. Using cannabis can add risk for nurses that if a workplace incident occurs, the employer or nursing board could argue that the incident was due to drug impairment at work.
Multi-state travel nurses must take extra care to be aware of the marijuana laws in every state they are licensed to practice. Legal use in one state can trigger a failed drug screening test at a new assignment in another.
If the level of marijuana usage turns into a substance abuse problem that interferes with a nurse’s work performance, the Board of Nursing can initiate nurse license disciplinary actions.
2) Can doctors smoke weed?
Doctors can smoke weed in legal states, like California and Colorado, if:
- they do not practice medicine while impaired,
- they follow their employer drug policies,
- they do not violate DUI or other drug criminal laws, and
- they do not work for the federal government.
State medical boards essentially treat legal cannabis use like alcohol; they only care about it when a physician is impaired while working. For example, the Medical Board of California (MBC) does not have rules regarding a doctor’s use of cannabis for recreational or medicinal purposes. But the MBC has strict rules about practicing while impaired and patient safety. If the MBC receives an impaired physician complaint, an investigation and medical evaluation can be ordered (BPC § 820).
Doctors that smoke weed can cause a workplace violation if their employer has a drug-free workplace policy. Physicians are considered safety-sensitive positions. Employers have the right to require pre-employment drug tests and establish a drug-free workplace. If you are not self-employed, it is essential to understand what your employer’s policies are.
The federal government still defines marijuana as a Schedule I controlled substance, even when legal under state laws. As a result, the federal government prohibits its employees from using medicinal and recreational marijuana. The US Department of Veterans Affairs, Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), National Institutes of Health (NIH), and other federal agencies can fire doctors for failing federal workplace drug testing.
Given the hassle, expense, and serious potential risks of medical board investigations, physicians need to consult with a medical license defense attorney for guidance whenever contacted by their board. Having THC in your system can add practice risk if a patient incident occurs that triggers in-depth scrutiny; the patient or board could allege it was due to drug impairment. As a result of the risks, many physicians err on the conservative side and avoid THC.
3) Do doctors smoke weed?
Three percent of doctors smoke weed, according to a Medscape physician survey of prior 12 months marijuana usage (1). In contrast, 12% of the general population reported that they currently used marijuana in a nationwide Gallup poll in 2019 (2). Therefore, doctors use marijuana at about one-quarter the rate of the general population.
A doctor’s history of ever using marijuana varies by medical specialty. The Medscape survey found emergency medicine physicians report the highest historical rate of marijuana use at 31%, followed by plastic surgery at 29%. The lowest reported rates of historical marijuana usage are for nephrology at 15% and endocrinology at 16%. In comparison, 38% of Americans overall report they’ve tried marijuana, according to the 2019 Gallup poll.
Doctor marijuana use by specialty
Source: Medscape Lifestyle Report Survey on Physician Marijuana Use
4) Can doctors or nurses use CBD oil?
Cannabidiol (CBD) oil is widely available and marketed as beneficial for arthritis, glaucoma, insomnia, anxiety, and other medical conditions. Since the 2018 Farm Bill became effective January 1, 2019, all 50 states have legalized the use of hemp-based CBD products. Industrial hemp plants, by definition, must have a delta-9 THC content of not more than 0.3 percent by dry weight.
Nurses and doctors can use hemp-based CBD oil in all 50 states, so long as the oil is THC-free. But many CBD oils can contain THC, even when labeled THC-free. A 2017 study published in JAMA by Dr. Marcel Bonn-Miller, a substance abuse specialist at the University of Pennsylvania Perelman School of Medicine found that 18 out of 84 different CBD oils tested contained THC.
If a doctor or nurse consumes CBD oil with THC, there is a risk of a positive drug test. If your employer or state bans THC use, you could be terminated, refused employment, or disciplined for a failed drug test.
Physicians and nurses need to do their research and be careful about the CBD they consume and trust. Even though most CBD products claim to have less than 0.3% THC content, these claims can be unreliable. The FDA does not regulate CBD, and THC levels are usually not listed on the bottle. Vaping or otherwise consuming certain CBD oils can put your job and license at risk.
5) Where is marijuana legal in the U.S.?
Marijuana laws are changing rapidly across the United States. Possession and recreational use of marijuana are currently legal for individuals over 21 in 15 states and Washington, D.C.: Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, Vermont, Washington and the District of Columbia.
The medical use of cannabis with a physician’s recommendation is legal in 35 states, including the states listed above, plus: Arkansas, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maryland, Minnesota, Mississippi, Missouri, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, and West Virginia.
Under the Controlled Substances Act of 1970, the possession and use of cannabis remain illegal under federal law. Some derivative compounds such as Cesamet (nabilone), Epididiolex (cannabidiol), Marinol, and Syndros (THC), have been approved for prescription use by the FDA.
6) Do nursing and medical schools require drug tests?
Most nursing and medical school programs require drug screen testing during the admission enrollment process. The requirement stems from the fact that schools must maintain compliance with health care organization rules, regulations, and accreditation standards.
Since medical school programs include clinical immersion experiences that involve students in the delivery of health care, medical students are subject to pre-clinical testing through urine drug screening (UDS). Each schools’ drug screening requirements must comply with their affiliated healthcare organizations’ accreditation and regulatory requirements.
Nursing and medical school urine drug screening typically tests for the following drugs: amphetamine (methamphetamine), barbiturates, benzodiazepine, cocaine, marijuana, methadone, methaqualone, opiates (codeine & morphine), phencyclidine, propoxyphene, and oxycodone. Some schools perform hair follicle drug testing in order to determine longer term drug use. Positive tests for prescribed medications usually require a review of the supporting prescription documentation.
7) Can a nurse or doctor with a green card or visa use marijuana?
Doctors and nurses that are visa or green card holders cannot legally use marijuana due to federal immigration laws, even if it is legal under their state laws. Non-US citizens are subject to federal laws that consider the possession and use of cannabis illegal, even for medical purposes.
States that have legalized marijuana do not require that you be a U.S. citizen to use marijuana. But marijuana use can put your federal permanent resident status at risk. If convicted for a violation of federal law relating to marijuana use or any other controlled substance (except simple possession of 30g or less of marijuana), visa and green card holders can become deportable. (USCIS policy)
About Chudnovsky Law
Chudnovsky Law is an award-winning California criminal defense and professional license defense law firm. The firm’s three defense attorneys Robert K. Weinberg, Suzanne Crouts, and Tsion Chudnovsky, have a combined 65+ years of experience practicing law.
The firm provides effective and vigorous license defense for licensed businesses and all health care professionals, including physicians, nurses, dentists, pharmacists, and chiropractors.
Attorney Robert K. Weinberg is a former prosecutor with more than 30 years of experience handling professional license defense, federal, DEA, and state criminal defense matters. Robert is an authority in the complex intersection of licensing and criminal law for professional licensees and healthcare corporations. He has handled over 5,000 cases, licensure administrative hearings and jury trials.
To learn more, call (844) 325-1444 to set up a consultation.
This information does not constitute legal advice and does not create an attorney/client relationship. No representations are made as to the accuracy of this information, and appropriate legal counsel should be consulted before taking any actions. Contact us for a consultation regarding your case facts.