October 14, 2019

Daniel Schulte Writes About Legal Marijuana Use on Licensure and Employment

Answer:

The best practice for professionals required to hold a license to practice their profession is not to use marijuana. Those professionals, using marijuana for medical conditions, must ensure that they have complied with Michigan’s Medical Marijuana Act. This includes obtaining and possessing a valid Registry Identification Card, not possessing quantities in excess of the legal limits, etc.

Michigan’s Medical Marihuana Act provides that licensees using/possessing marijuana legally pursuant to that law cannot be denied “any right or privilege.” This includes disciplinary action being taken against them by an occupational or professional licensure board. So the Board of Dentistry would not be able to sanction anyone due to legal medical marijuana use. Your Michigan controlled substance license would also not be in jeopardy due to legal medical marijuana use. The use of marijuana for any purpose is, however, illegal under federal law. The federal government issues your DEA registration and is therefore at risk if you use marijuana. Please note that Michigan’s Medical Marihuana Act will not protect you against an allegation (whether made in a licensing action, malpractice case or otherwise) that you provided dental services while under the influence.

Recreational Use of Marijuana

Those who use marijuana for recreational purposes legally pursuant to Michigan’s Regulation and Taxation of Marihuana Act are provided similar protections. This means your dental license and controlled substance license cannot be sanctioned based on your legal use of marijuana alone. However, the same caution regarding your DEA registration applies. The possession and use of marijuana is illegal under federal law. Therefore, your use/possession may result in action by the federal government against your DEA registration. The same is true for being under the influence even when the use is legal. The legality of your use will not be a defense in a licensing action or malpractice case.

There is nothing in the law preventing an employer from establishing a drug testing policy and/or establishing a “zero tolerance” policy for drug use. In fact, both the Michigan’s Medical Marihuana Act and Michigan’s Regulation and Taxation of Marihuana Act state the opposite. These laws expressly provide that an employer may enforce a workplace drug policy, refuse to hire, discipline an employee and otherwise take adverse action against an employee due to marijuana use and/or testing positive for marijuana use.

The only way to be free of risk of licensure actions, malpractice actions and/or adverse employment actions is to not use marijuana.

The article can be viewed in the Journal of the Michigan Dental Association, on page 20.

About the author:

Daniel SchulteHeadshot of Daniel J. Schulte of Kerr Russell has more than 25 years of experience helping clients solve tough problems and capitalize on opportunities that require a blend of business and legal expertise. His practice focuses on addressing the legal, business, licensing, and regulatory challenges of health care professionals, organizations, and facilities. Dan understands how legal issues impact business objectives and, as a result, offers his clients practical, results-oriented advice. He is a Certified Public Accountant, former managing partner and current executive committee member of the firm. Dan also serves as co-chair of the firm’s Health Care Practice Group.

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Attorneys

Daniel J. Schulte

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Health Care Law