When Kaitlin McKeon was confronted with the results of her drug test, she already knew what it would show: positive for marijuana. Before she’d even enrolled in the nursing program at Nova Southeastern University, the bubbly then-23-year-old had told school officials she had a medical marijuana card and used the drug to relieve her chronic stomach pain.
The surprise was the next part: Because she’d failed the test, she was being recommended for dismissal. The director of the school’s entry-level nursing program, Lori Lupe, handed the eager, first-year student a letter declaring she had violated the school’s zero-tolerance drug policy. McKeon was so stunned she barely defended herself. She left the February 2018 meeting and cried.
Initially recruited to swim at Nova Southeastern straight out of high school, McKeon had to postpone her college plans because of health problems that began with a severe stomach bleed. Now her life was being thrown off-course again — this time by the very thing that had finally helped her feel better.
“Right away, I felt embarrassed, like I did something wrong,” McKeon says, “because that’s kind of how they made me feel.”
In November 2016 — more than a year before McKeon started classes at the Fort Myers campus of the private Fort Lauderdale-based university — 71 percent of Floridians voted to amend the state constitution to make marijuana accessible to patients with severe medical conditions. But while many advocates, patients, and politicians believe the amendment settled the issue, the reality is far more complicated. McKeon’s predicament illustrates the Catch-22 many patients face in Florida and other states where the drug is now legal: They can use marijuana, but they’re not protected from being penalized at work or school as a result.
As a growing number of states legalize medical marijuana, stories like McKeon’s are cropping up across the nation. There’s the Brevard County teacher who was fired from the job she loved and outed in the local paper for violating the school district’s drug-free workplace policy. There’s the 11-year-old Illinois girl who wasn’t allowed to go to class because she wore a marijuana patch to treat symptoms of leukemia. There’s the quadriplegic man who was fired from his job at a Colorado call center for using medical marijuana to control his muscle spasms.
“People who use marijuana for medical purposes really get discriminated against.”
And there’s McKeon, who says Nova officials gave her an ultimatum: Either stop using medical marijuana or stop taking classes at the university.
A year after the drug test that derailed her career dreams, she is now suing the school (as well as Castle Branch, the company that administered the test), claiming in a complaint filed in Broward County Circuit Court that the school violated Florida’s medical marijuana law. She hopes her experience can help other patients who depend on medical marijuana.
“I don’t think people really realize how people who use marijuana for medical purposes really get discriminated against,” she says. “There’s a very big stigma against it.”
Since California became the first state to legalize medical marijuana in 1996, there’s been confusion and debate about whether patients can be fired from their jobs or expelled from school for using the drug.
In 1999, a Sacramento-area man named Gary Ross began using marijuana on his doctor’s recommendation to relieve chronic pain from injuries he had sustained in the Air Force. But that didn’t stop his bosses at a data company from terminating him when he flunked a drug test. Ross sued the company for employment discrimination, arguing his doctor-recommended marijuana use should be treated the same way as a prescription for insulin or Zoloft.
The case went all the way to the California Supreme Court, where, in 2008, the majority ruled against Ross. The ruling said the Compassionate Use Act merely shielded patients and their doctors from being criminally prosecuted and did not give marijuana — because it’s still illegal under federal law — the same status as a prescription drug. Two of the justices disagreed. They blasted the majority’s decision as “conspicuously lacking in compassion,” adding it had “seriously compromised the Compassionate Use Act.”
In the 11 years since that decision was handed down, medical marijuana has become more widely accepted. It’s now legal in 33 states, where an estimated 2.6 million people rely on it for medical treatment, according to the Marijuana Policy Project. Yet in cases across the nation, patients have lost their jobs or been kicked out of school for legal use of the drug.
“There’s also the question of how many people do not seek a recommendation for medical cannabis who may benefit from it but do not want to lose their job,” says Mason Tvert, a spokesman for the Marijuana Policy Project.
The ruling meant patients “will have to choose between using medical marijuana and work.”
Of the states where medical marijuana is legal, just over a third have passed laws explicitly forbidding employment discrimination. They are Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, Rhode Island, and West Virginia. In places where those protections don’t exist, medical marijuana users have struggled to find and keep jobs — and the courts haven’t exactly helped.
In 2015, citing the clash with federal law, the Colorado Supreme Court ruled against Brandon Coats, a quadriplegic Dish Network employee canned for using medical marijuana off-duty. The decision followed similar rulings across the country.
Coats’ attorney, Michael Evans, called the decision “devastating.” It meant, he told reporters at the time, that even in a state with some of the most liberal marijuana laws in the nation, patients “will have to choose between using medical marijuana and work.”
A shift may be underway, though: In the past two years, courts have begun ruling in favor of patients. Those victories have come even in states without explicit employment protections for medical marijuana patients. In Massachusetts, the state’s highest court in 2017 ruled that a marketing company was wrong to fire a worker who used marijuana to treat Crohn’s disease. The Arizona Supreme Court last year found that a 2012 law banning medical marijuana on college campuses violated the state’s constitution. And in New Jersey just last month, an appeals court decided that under a state antidiscrimination law, medical marijuana patients cannot be fired for failing drug tests.
Florida’s medical marijuana law, still relatively new at less than three years old, has not undergone such a test. At least, not yet.
It was her own time as a patient that made McKeon want to become a nurse. Until her high-school graduation in 2012, she’d always been healthy. But suddenly, she began getting so sick she could barely stop vomiting. After losing nearly 20 pounds, she gave up her swimming scholarship and stayed home in Naples instead of starting classes.
“She was in and out of the hospital; we were going to Miami, going to Fort Lauderdale,” says her dad, Daniel McKeon. “We went to all these hospitals all over the place trying to find an answer or a treatment or something for it.”
Although doctors still don’t know the exact cause of her health issues, McKeon was eventually diagnosed with severe anemia, among other conditions. For about a year beginning in 2015, she visited the Florida Cancer Center for twice-weekly iron infusions. Each infusion meant a few hours of sitting in a chair while the iron was fed from an IV into her arm. While McKeon waited, the nurses would always strike up conversations and make sure she was comfortable. Sometimes one of them would sit and play cards with her. On holidays, they’d throw parties for the patients.
“That’s why I wanted to do it, because when I was sick, those nurses were so great,” McKeon says.
Although it took a few years for her to feel well enough to go to school, in the summer of 2017, she felt ready. Before enrolling in Nova’s nursing program, she and her dad told the nursing director, Lori Lupe, that a doctor had recommended she try medical marijuana. They wanted to be sure it wouldn’t disqualify her. McKeon and her father say Lupe told them it wouldn’t. (Lupe did not respond to New Times‘ request for comment.) Moreover, the student handbook said only that medical marijuana couldn’t be used on school grounds.
She decided her own well-being was more important than going to nursing school at Nova.
With those assurances, McKeon began classes in late August. On Instagram, she posted a picture of herself beaming in blue scrubs embroidered with her name. “Sometimes you have to put your life on hold to get your health on track,” she wrote in the caption. “Ready to dive back in.”
Her medical marijuana card came in October. She wasn’t especially optimistic about it — her parents were the ones who encouraged her to apply after seeing her so often in pain. But when she began vaping the drug each night, she was amazed at how much better she felt. Weed knocked out her stomach pain in a way nothing else had. She says she felt “like a normal human again,” able to go to the beach or the bar with her friends. Her family also noticed the difference.
“I’m definitely not for legalizing marijuana for recreational use, but from the difference that I see, for medical use, for Kaitlin, it’s just astonishing,” her dad says. “If you were to see her before and after, you wouldn’t believe it was the same person. And everyone who sees her says they can’t believe it.”
Everything seemed to be going her way, until administrators told McKeon her positive drug test meant she might be kicked out of school. She got a chance to appear before a disciplinary committee to plead her case. But when she stood in front of the board and read a statement she’d written — over a video-conferencing service because the officials were based in Fort Lauderdale — she could sense she’d already lost.
Feeling ashamed, McKeon stopped using marijuana while she waited on a decision from the school. But her health slid back downhill. She eventually ended up at the Mayo Clinic in Jacksonville, she says.
“At that point, I still felt embarrassed, and I felt like I wanted to be a nurse, and I wanted to keep trying,” she says. “I immediately just thought, OK, I’ll try. And it didn’t work out very well.”
By the time administrators said that spring she could return if she stopped using marijuana, she had decided to leave the school. The pain was too much to endure now that she knew of a way to get relief. She decided her own well-being was more important than going to nursing school at Nova.
“I was like, You know what? I can’t do this to try to appease them,” she says. “My health isn’t worth this.“
McKeon’s untimely departure from nursing school meant she was out about $20,000 in tuition. Neither she nor her parents could believe they’d been assured her use of medical marijuana wasn’t a problem, only for her to start classes and ultimately be pushed out.
“Things were going good,” her dad says. “She was getting better; she was doing astounding in school — when she puts her mind to something, she gives it 100 percent. She was getting great grades and was so excited to start her clinicals, just to get knocked down.”
Also stunned by the turn of events was My Florida Green CEO Nick Garulay, whose clinic helped McKeon get her marijuana card. He called the situation “heartbreaking” and “criminal.” Through him, McKeon and her family got in touch with an attorney who was eager to take the case: Michael Minardi, the cannabis lawyer who’s leading a campaign to put recreational marijuana on the ballot in 2020.
Minardi filed McKeon’s complaint in February, accusing Nova of violating Florida’s law allowing medical marijuana use, along with fraud and breach of contract. They’re seeking unspecified damages.
“I think that if people are using medical marijuana and they are sick, then they should not have to switch their major or their job or their dreams because of a medicine they are taking,” McKeon says. Adds Minardi: “We just want it to be treated the same as all other drugs.”
University attorneys have asked for the lawsuit to be dismissed, but so far no hearings have been held. School spokesman Brandon Hensler, citing the pending litigation, declined to comment on the specifics of McKeon’s situation.
Asked about the school’s policies on medical marijuana, he pointed New Times to the student handbook. But, as McKeon and her father found before she enrolled, that document defines illicit drugs as those “obtained or used without a physician’s order.” It addresses medical marijuana directly only once, saying that in accordance with federal law, “the possession or use of medical marijuana, even if authorized under state law, is prohibited on NSU property and during NSU-sponsored events.” McKeon says she never used marijuana on campus or during school events — only at home in the evenings. “Looking at Nova’s handbook,” she says, “I didn’t do anything wrong.”
“People shouldn’t have to give up their dreams because they are a patient taking medicine.”
Advocates for medical marijuana and drug reform have been outraged by the school’s handling of McKeon. Norm Kent, a lawyer and South Florida-based board member of the National Organization for the Reform of Marijuana Laws, says Nova is violating her “absolute right” under the state constitution to use the drug. Doing so might even be a breach of the Americans With Disabilities Act, Kent believes.
“The student is being unlawfully treated by the school, and the only thing more offensive and unconscionable than the university expelling her is that 10,000 students have not already gathered in the administration building and smoked the damn place out until they let her back in,” he says.
But Ben Pollara, a Miami Beach political consultant who led the campaign to legalize medical marijuana in Florida, says the law has no specific language addressing universities or protecting patients from being kicked out of school.
“I think it absolutely goes against the spirit of what the voters approved but not so much against the letter,” he says. It’s a significant gap that lawmakers should address, he adds, although after efforts this year to cap THC levels in medical pot, he isn’t hopeful.
State Rep. Michael Grieco, a Miami Beach Democrat who this year sponsored a failed bill to legalize recreational marijuana, was shocked and dismayed to hear of McKeon’s ordeal. From his perspective, disciplining a person for using medical marijuana goes against the Florida Constitution and the will of voters.
“People shouldn’t have to give up their dreams because they are a patient taking medicine,” says Grieco, who told New Times he planned to look into the issue as something the Legislature could tackle.
McKeon, meanwhile, is now taking online classes at Florida Gulf Coast University while working at a doggy daycare and at a psychiatrist’s office. She’s put away the scrubs she once was so proud of and given up on nursing. Instead, she’s majoring in public health, which will give her a chance to make change.
She says her health is her top priority and she still uses marijuana daily, which hasn’t been a problem since she left Nova. She hopes her case might lead to school and employment protections for patients like her.
“I was really, really upset for a while. They made me feel like I was doing something wrong, so I felt guilty. But now I don’t feel any way toward it,” McKeon says. “I feel that this is a part of my life, and I am who I am, and if something is going to help me live my life, that’s the most important thing to me.”
Update: On April 26, 2019, Kaitlin McKeon voluntarily dismissed Castle Branch from her case. An attorney for the company says that while Castle Branch does not know the specifics behind the decision, it came about after Castle Branch filed a Motion to Dismiss the claims against it.
BRITTANY SHAMMAS | MAY 7, 2019 | 8:00AM