In the November presidential election, Arizona,New Jersey, and Montana approved ballot measures legalizing recreational marijuana; Mississippi voted to legalize medical marijuana; and South Dakota approved measures legalizing both medicinal and recreational marijuana. While state cannabis laws vary in scope, 34 states now have medical marijuana programs and 15 allow the use of recreational marijuana. Several other states are now considering similar laws, and 11 have approved the sale of products containing cannabidiol (CBD), a cannabinoid derived from the cannabis plant that does not induce the high typically associated with marijuana.
Only a handful of states still have no public cannabis access program. With the trend toward legalization has come increasing public acceptance of marijuana and CBD, as well as mounting interest in therapeutic benefits touted for a wide range of cannabis products. Aside from the use of marijuana for recreational purposes, marijuana and CBD products are already being ingested in multiple forms by Americans for a wide range of problems, including chemotherapy-induced nausea, epilepsy, multiple sclerosis, anxiety, and neuropathy.
SCHEDULE I CONTROLLED SUBSTANCE OR THERAPEUTIC AGENT?
The evidence for the benefits of marijuana or CBD in alleviating some health conditions has grown stronger; in other instances the evidence, often generated by industry-funded research, remains weak (see "The Cannabis Conundrum," In the News, December 2019).
In 2018, the Food and Drug Administration approved the first cannabis-derived medicine, Epidiolex, which contains CBD, for the treatment of severe childhood epilepsies. But research into the efficacy and adverse effects of cannabis products has been severely hindered by the federal classification of cannabis as a Schedule I controlled substance, along with such drugs as cocaine and heroin. Would-be researchers must negotiate onerous government oversight processes.
On December 4, the U.S. House of Representatives cast a largely symbolic vote decriminalizing marijuana. However, the Senate was not expected to approve the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which would have removed cannabis from the Controlled Substances Act, decriminalized its sale and production, expunged federal cannabis criminal records, and created a 5% sales tax on marijuana. For the foreseeable future, marijuana remains illegal at the federal level.
NURSES, THC, AND 'POPPING POSITIVE' IN THE WORKPLACE
Tetrahydrocannabinol (THC), one of over 100 cannabinoids in the cannabis plant, is its primary psychoactive component and the one chiefly responsible for the cognitive impairments usually associated with marijuana. THC can temporarily impair motor coordination and the ability to make decisions, remember, plan, and regulate emotions and behavior.
As with alcohol, the impairment caused by marijuana is transient. But as members of a "safety-sensitive" profession, nurses face thorny issues when considering the use of cannabis, even on their downtime. According to a 2019 story on http://westernmassnews.com, an NP in Oregon applying for a position in an urgent care clinic unwittingly cost herself a job when she took CBD oil purchased at a state dispensary and tested positive for THC in the preemployment drug test. The nurse said she had taken the CBD to relax and that she was unaware the small amounts of THC in some types of CBD can result in a positive test.
Such stories don't usually make the news, but anecdotal evidence suggests they happen frequently. A visit to a nurses' message board turns up numerous stories of nurses who have lost jobs and/or faced discipline by a state board of nursing (BON) for "popping positive" on drug tests. In some cases, a nurse taking CBD didn't know it could cause a positive result; in others, the nurse had been certified by a physician for a medical marijuana program on the basis of a qualifying medical condition.
What's tricky about THC and drug tests. In conversation with AJN, Kathy Russell, JD, MN, RN, a coauthor of the National Council of State Boards of Nursing (NCSBN) National Nursing Guidelines for Medical Marijuana, expressed concern that nurses may not be aware that THC is fat soluble (unlike alcohol, which is water soluble), which means it is not metabolized at a steady rate and may show up in laboratory tests days or weeks after ingestion.
In addition, she pointed out, some CBD products are derived from hemp, a strain of the cannabis plant that is bred to have less than 0.3% THC, and others from a strain that may have more than 0.3% THC. Depending on the source and other production factors, some CBD products can cause a positive THC test. For example, in the story of the Oregon nurse cited above, the nurse said she had not known the difference between "full-spectrum" CBD, which by definition contains up to 0.3% THC, and "broad-spectrum" CBD, which is not supposed to contain any THC.
A further hazard that nurses should be aware of, said Russell, is that CBD product labeling may be unreliable. In a November 2017 study in JAMA, "Labeling Accuracy of Cannabidiol Extracts Sold Online," the authors note that "discrepancies between federal and state cannabis laws have resulted in inadequate regulation and oversight." The study found that along with many CBD products that contained far less CBD than the label promised, "[unlabeled] THC was detected . . . in 18 of the 84 samples tested."
TOWARD A MORE NUANCED REGULATORY APPROACH
In 2016 the NCSBN convened a committee to develop guidelines "to assist BONs in managing the many regulatory issues resulting from medical and recreational cannabis."
'No objective threshold' for impairment. As described in the resulting 2018 NCSBN Guidelines for the Board of Nursing Regarding Licensees and Marijuana, a 2017 report to Congress by the National Highway Traffic Safety Administration concluded that current laboratory tests cannot provide any "objective threshold" for THC level indicating how long ago the THC was ingested or whether the individual is currently impaired. Therefore, as the NCSBN states in a summary document, in the absence of "impairment or other indicators" of substance abuse, "principles of public protection may not be served by a per se violation for a positive test for THC which results in a BON action or request for a substance use evaluation/fitness to practice evaluation."
'Right-touch regulation.' Noting a shift in public perception as well as the state-level legalization trend, the NCSBN guideline emphasizes a balanced ("right-touch") regulatory approach in meeting its core duty to protect the safety of the public. Taking into account "mitigating and aggravating factors," "the disciplinary decision should be appropriate to the circumstances" and "have a minimal effect on the nurse's practice beyond what is necessary."
Although the role of the NCSBN in relation to individual BONs is solely advisory, the NCSBN guideline details factors for BONs to consider in the event of a marijuana complaint against a licensee, among them current laws regarding medical and/or recreational marijuana in the state, standards and limitations of laboratory testing for THC, and whether there are allegations of employee impairment in the workplace.
WHERE DOES THIS LEAVE NURSES?
As long as employers test nurses for drugs and penalize them by firing them, withdrawing job offers, sending them for monitoring and expensive drug treatment, and reporting them to the BON, marijuana or CBD use remains a career danger zone.
Is a zero-tolerance, drug-free health care workplace still the only option to protect patient safety and guard against liability claims? Some medical marijuana users have begun to push back, and according to an October 2, 2018, story on http://APnews.com, they are beginning to win lawsuits against employers. When a nursing home in Connecticut rescinded a job offer for a health care worker who had tested positive for THC, although she'd told the employer at the interview that she took marijuana for posttraumatic stress disorder only at night, she sued and won. In the decision, the judge stated that "the federal Drug Free Workplace Act, which many employers . . . rely on for policies on drug testing, does not actually require drug testing and does not prohibit federal contractors from employing people who use medical marijuana outside the workplace in accordance with state law."
Connecticut is one of 12 states that ban employment discrimination against medical marijuana users. In a number of these states, nurses and other health care workers have begun to find support in the courts for the argument that they are being illegally discriminated against; some legal observers see this trend as leading more workplaces, in the absence of signs of impairment in an employee, to avoid potentially costly lawsuits by opting out of drug testing.
For now, though, nurses would be wise to play it safe when it comes to cannabis.-Jacob Molyneux, senior editor