It's a question that comes up more and more frequently in our world. If you are a licensed professional (e.g., doctor, nurse, CPA, lawyer), and you also happen to hold a medical marijuana card, could the medicinal use of marijuana cause you to lose your license?
Unfortunately, it's not a question that is easy to answer, especially since the laws concerning legal marijuana use now vary widely from state to state. At least 36 states have legalized marijuana for medicinal use, and 17 have legalized it for recreational use. At the same time, not all licensing boards have kept in step with changing attitudes toward cannabis, and there are still many lingering concerns about impairment on the job as well as public perception around licensed professionals who use marijuana. All these factors come into play to make this question a very murky one.
So…can the use of medical marijuana still jeopardize your professional license? The answer is a resounding “maybe.” If you have found yourself in hot water with your state's licensing board over the legal use of medical marijuana, it's not an issue to take lightly. After all, your livelihood depends on your license to practice, and losing that license could cost you your career. Having an experienced professional license attorney in your corner can make a huge difference in the outcome and quite possibly save your license.
Joseph D. Lento is an experienced attorney who has successfully defended many licensed professionals in New Jersey and New York. Having additional experience in criminal defense law, Mr. Lento also understands the intersection of marijuana use with professional licensing better than most. The Lento Law firm has provided the following information so you can be informed on what to expect if your license comes into question over this issue—and what you can do to defend yourself.
Factors that Make Medical Marijuana a “Gray Area” with Licensed Professionals
Let's start by taking a look at the various reasons why there's no clear-cut answer for whether licensed professionals could lose their license over medical marijuana use. We live in confusing times concerning this issue. Let's look at two major factors in play.
First: The laws are different from state to state, and sometimes from city to city.
A growing number of states have legalized marijuana for recreational use—although the specific regulations can still vary widely. Other states allow the medical use of marijuana, and most of those will issue medical marijuana cards for eligible registered patients. Still others have “decriminalized” the use of cannabis, meaning it's still illegal but you probably won't be arrested for possessing or using it. In only a handful of states, marijuana is still completely illegal. To confuse the issue further, some cities and counties have made their own rules regarding marijuana use. And lest we forget—according to the federal government, it's still a Schedule 1 drug, so while the federal government won't impose itself on state laws, it's still technically a federal crime to possess, use, or sell marijuana, no matter where you live!
The reason this factor matters is that for many licensing boards, a criminal conviction can be grounds for revoking your license apart from the drug use itself—so it's important to know the laws regarding cannabis use in the place where you practice your profession.
Second: State licensing boards are inconsistent in addressing the legal use of cannabis.
Even in states where medical marijuana (or even recreational marijuana) is now legal, many licensing boards are still grappling with this issue. Some boards may continue to take a hard line on the issue, forbidding any licensed professional to use it on or off duty, regardless of medical issues. Others may consider all angles on a case-by-case basis. Certain professions are relaxing their stance a little on medical marijuana use—for example, the National Council of State Boards of Nursing recently changed its guidelines so that an allegation of cannabis use is no longer automatic grounds for disciplinary action, so any state nursing board that adheres to the NCSBN guidelines will follow suit. But other professions and other licensing boards may not be so quick to change their own standards. The two main concerns licensing boards may have regarding any cannabis use are:
- Whether the use of marijuana (even medicinally) impairs the professional at work; and
- Whether cannabis use damages the credibility and reputation of that profession.
Now that we've covered some of the basics of this issue, let's address some specific commonly asked questions.
If I am a registered cannabis patient in a state where medical marijuana is legalized, can my licensing board still legally suspend or revoke my license for using marijuana?
In many cases, yes. If the board finds that your use of cannabis violates their own rules and policies, they may legally suspend or revoke your license even if you didn't violate any laws by using cannabis. Here's why:
When you are licensed by the state to practice any profession—whether it's medicine, nursing, law, counseling, etc.—you are entering into an agreement to abide by the rules, policies, and standards set forth by the licensing board. Violating those rules constitutes a breach of the agreement and may result in losing your license—even if the actual violation didn't break any state or federal laws.
So the real question becomes: Did your use of medical marijuana violate the rules of your professional license? If the board specifically prohibits the use of cannabis in any capacity, for example, they probably have a strong case for revoking your license. If they have a more general rule against “substance abuse” (i.e., alcohol or drug use), or if they find that the use of cannabis is affecting your ability to perform on the job, they may also have legal grounds for disciplining you if they can demonstrate that cannabis played a role in these issues.
What could trigger an investigation by my state licensing board over my use of medical marijuana?
Depending on your specific profession and the standards of conduct set forth by your state's licensing board, the medical use of cannabis could potentially prompt an investigation under any of the following circumstances:
- Marijuana is detected by a drug test at your workplace, and your employer reports it to the licensing board.
- Someone files a complaint suspecting you of being under the influence while on the job. For example, if someone detects the smell of marijuana on you or in your office, or if somebody believes you are acting impaired on the job, they might file a complaint.
- Someone observes you using marijuana off-duty (or overhears you talking about it) and reports you to the board.
What disciplinary actions could my licensing board take against me over cannabis use?
Depending on your licensing board's specific policies concerning cannabis use—and the specific circumstances—the board may opt to take any of the following adverse actions against you:
- License revocation. The board may permanently cancel your license.
- License suspension. The board may prohibit you from practicing for a specified or indefinite period of time.
- License restriction. The board may allow you to continue practicing but with certain restrictions in place.
- Fines. The board may impose a monetary fine.
- Mandatory treatment. If the board deems your cannabis use as drug abuse, they may require you to undergo treatment as a condition for keeping your license intact.
- Probation. The board may place you under monitoring or supervision for a time.
- Formal reprimand. In certain cases where the offense is deemed minor, the board may opt to place a formal reprimand in your file.
If the board chooses to let me keep my license but still issues another form of disciplinary action, could it still damage my career?
Yes. Any disciplinary action taken by a licensing board—even a reprimand—will become public record. Anyone who wants to check the status of your license can look it up and see what adverse actions have been taken against you. A negative notation on your record could affect whether an employer or a client decides to hire you, for example. The best way to avoid this kind of outcome is to have the complaint dismissed, so it doesn't go on your record—and that's where an attorney may be able to help.
I have been notified by my licensing board that they've received a complaint about me regarding marijuana use. What can I expect to happen?
While each licensing board and each state has its own disciplinary processes in place, most complaints to a state licensing board follow a similar path. You can check the policies of your own licensing board, but here's a general idea of what to expect:
- Investigation. The board will investigate the complaint to find out if it has merit or if there is evidence to back it up. The investigation will probably include asking you to provide written or oral testimony explaining your side of the story. It may also involve questioning witnesses, coworkers, employers, etc., as well as issuing subpoenas for any applicable documents.
- Consent order. If the board finds substantive evidence that you a) used cannabis, and b) that usage violated the rules; they may offer to negotiate a consent order with you to avoid having a formal hearing. A consent order is a legal agreement in which you effectively admit to wrongdoing and voluntarily accept the prescribed disciplinary actions. In some cases, a consent order may provide an alternative to losing your license, or at least offer a path for reinstatement.
- Formal hearing. If a consent order is not offered or cannot be agreed upon, the board holds a formal hearing. Depending on your state laws, this hearing may take place directly in front of the board or in a courtroom with an Administrative Law Judge.
- Final determination and penalty. When the hearing concludes, the Judge and/or board will make a final decision regarding your guilt or innocence and what disciplinary action to take (if any).
- Appeal. You have the right to appeal an adverse decision to the appellate courts in your state.
It should be noted that at any point in this process, the board may decide to dismiss the complaint—particularly if you can disprove the claim or if the evidence against you is insufficient. Having a professional license attorney in your corner can have a significant impact on this process and improve your chances for a favorable outcome.
What factors may the licensing board take into account when deciding whether to discipline me over medical marijuana use?
In situations where the licensing board is unclear as to whether any rules were broken—or in situations where their policies have been amended (as in the case of the National Council of the State Boards of Nursing)—the board will consider several factors, including the following:
- Did you use marijuana while on duty? In most cases, whether or not it was “legal,” using cannabis while at work will be grounds for at least a license suspension in most professions. The reason is that regardless of medical reasons, marijuana is a mind-altering drug that can affect your judgment while at work.
- Were you impaired in the performance of your duties? The lingering effects of marijuana are still unclear, and they may differ from person to person. So even if you used medical marijuana while off duty, the board may take issue if there is evidence that it affected your work.
- Has your professional credibility been damaged? Public trust is a top priority in many licensed professions—especially doctors, nurses, lawyers, licensed counselors, brokers, etc. If the board believes your use of medical marijuana has compromised public trust in any way, it may opt to invoke disciplinary action.
As you may be able to tell, these questions can be very ambiguous, and every situation may be different. When the board is considering these issues, a good license defense attorney may have plenty of room to argue in your defense—to provide evidence that your use of medical marijuana is not affecting your performance or damaging your credibility with your clients, for example.
Why do I need to hire a license defense attorney? Can't I resolve this complaint on my own?
You always have the right to represent yourself before the licensing board in any investigation or hearing. However, it's generally not advisable for several reasons:
- A license investigation is a legal matter—even if you haven't broken any laws. Your license to practice is a legal agreement with the state, so when that license is called into question, it is a legal matter. It is always best to have a legal expert represent you in legal matters.
- The licensing board is not on your side. The job of the licensing board is to protect the public interest, not to protect you. Once an allegation of cannabis use (or other violation) has been made, the licensing board is looking for evidence that you violated the public trust. Attempting to resolve the complaint informally, without an attorney, may only make things worse.
- You are at a disadvantage by default. The state licensing board knows its own disciplinary procedures better than you do, so even though they may make every effort to be “fair,” you're still entering the process at a disadvantage. Having experienced legal counsel in your corner helps level the playing field.
What advantage do I have by hiring a professional license defense attorney? How can they help me?
By hiring an experienced professional license defense attorney when your license is threatened, you immediately improve your chances for a favorable outcome. A good attorney will:
- Evaluate the details of the complaint against you and the circumstances surrounding them
- Explain to you what is at stake and your best- and worst-case scenarios—and what you can do to improve your position
- Determine the best lines of negotiation and defense to disprove the claims against you
- Gather evidence to prove that the use of medical marijuana is not harming your ability to function as a licensed professional
- Interface with the licensing board at multiple points during the investigation to negotiate for dismissal of the complaint—or the most lenient possible action
- Defend you aggressively during a formal hearing, if necessary (in many cases, it won't be necessary)
The use of medical marijuana is still a grey area when it comes to licensed professionals, and if you have a medical condition that is helped by the use of cannabis, you shouldn't have to sacrifice your career over it. Don't allow your license to be unfairly jeopardized as a result. Attorney Joseph D. Lento has extensive experience defending licensed professionals in New Jersey and New York, and he will work to help you get the best possible resolution to your case. Call the Lento Law Firm at 888-535-3686 to see how we can help.
