Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, October 5, 2017

"Cannabis Industry Struggles With Hiring People With Past Pot Convictions"

The title of this post is the headline of this notable new Forbes article, which includes these passages:

As the cannabis industry continues to grow, a debate is brewing over whether those with drug convictions should be allowed in the industry. Marijuana businesses are in a position of uncertainty amid U.S. Attorney General Jeff Sessions' anti-drug rhetoric. Meanwhile, the fast-growing, multi-billion-dollar industry is drawing investors and entrepreneurs.

Indeed, there is a hypocrisy evident in some corners of the newly legal marijuana market. Earlier this year, Massachusetts medical marijuana provider Patriot Care drew controversy after it opposed a proposal to remove the ban on felony drug convictions from the state's medical cannabis program. "Permitting those who have demonstrated the interest and willingness to ignore state and federal drug laws sends the wrong signals to those who would participate in the legal, regulated industry," wrote Robert Mayerson, CEO of Patriot Care, in a letter to the Massachusetts Public Health Council.  While companies like Patriot Care operate legally under state law, all state-legal cannabis companies are violating federal drug laws.

Many states have marijuana laws that bar drug offenders from entering the cannabis industry in an effort to legitimize the trade and help prevent out-of-state diversion. In practice, the ban does not prevent trafficking.  But it does shut out individuals with marijuana-related convictions, who are disproportionately black and Latino. And in a twist of absurdity, many of these felony bans apply only to drug-related crimes.

“You can go to a cannabis investment conference and no one is talking about the fact that just down the road there are people who are incarcerated for smoking or dealing or growing this very same product,” said Ryan Anslin, who has been investing in the industry for nearly four years.  “To entirely leave that out of an investment conversation is fundamentally wrong.” Anslin believes that those in the industry are obligated to put resources towards changing drug laws. "There's a level of complacency that has emerged in the early industry," he said.  While that may be the case for many investors and operators, other players are working towards creating an equitable industry.

Derek Peterson, the CEO of Terra Tech, thinks it's a "disaster" that there are executives in the marijuana space who oppose social justice reforms. Terra Tech is a publicly traded cannabis company that operates in California and Nevada, and has a cultivation facility in Oakland, Calif. with minority interest.  Peterson says the company supports equity programs like that in Oakland, and it is working with lobbyists to insert criminal justice-reform language into legalization legislation in New Jersey. "We don't feel very comfortable about the opening up of markets and economic development [while] watching people sit in prison," he said. "There needs to be allowances in new legislation that allows for people who have been incarcerated for drug crimes to [enter] this industry."

Barring those with experience in the illicit market could also shut out people with relevant expertise. "[It's] doing a disservice to some of the best knowledge base in the cannabis industry. These are the guys who paved the way," said Rob Hunt, principal of the consulting firm ConsultCanna who was formerly a founding partner of the cannabis private equity firm Tuatara....

For Anslin, the key to crafting reforms is focusing on record expungement. "As an employer in the space… I would always be really careful to hire people who have knowingly done things against the letter of the law," he said. But when it comes to certain marijuana offenses, "they shouldn't have been convicted of anything to begin with."

October 5, 2017 in Business laws and regulatory issues, Criminal justice developments and reforms, Employment and labor law issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, October 2, 2017

"Government jobs sprout as California legal pot looms"

The title of this post is the headline of this notable recent AP article, which starts this way:

Scientists. Tax collectors. Typists. Analysts. Lawyers. And more scientists.

Recreational marijuana sales become legal in California in 2018, and one of the things to blossom in the emerging industry isn't green and leafy.  It's government jobs.

The state is on a hiring binge to fill what eventually will be hundreds of new government positions by 2019 intended to bring order to the legal pot economy, from keeping watch on what's seeping into streams near cannabis grows to running background checks on storefront sellers who want government licenses.  Thousands of additional jobs are expected to be added by local governments.

The swiftly expanding bureaucracy represents just one aspect of the complex challenge faced by California: Come January, the state will unite its longstanding medical cannabis industry with the newly legalized recreational one, creating what will be the United States' largest legal pot economy.

Last January, just 11 full-time workers were part of what's now known as the Bureau of Cannabis Control, the state's chief regulatory agency overseeing the pot market. Now, it's more than doubled, and by February the agency expects to have more than 100 staffers.  The agency is moving into new offices later this year, having outgrown its original quarters.  It's expected new satellite offices will eventually spread around the state.

There also will be scores of jobs added to issue licenses for sellers, growers, truck drivers, manufacturers and others working in the projected $7 billion industry.  The state has taken to Facebook to lure applicants.  The bureau is using a video snippet of actor Jim Carrey, hammering his fingers into a computer keyboard, to catch the eye of prospective applicants online. "Get those applications in ... before this guy beats you to it," it reads. "New job just ahead," reads another post. "We're hiring."

This year's state budget contained about $100 million to fund regulatory programs for marijuana, which includes personnel to review and issue licenses, watch over environmental conditions and carry out enforcement.

Planned hiring into 2018 covers a range of state agencies: Fifty people are bound for the Public Health Department, 65 are slated to join the Water Resources Control Board, and 60 new employees are expected at the Food and Agriculture Department, which will oversee licensing for cultivators.

Some of the work is highly specialized. Environmental scientists will be responsible for developing standards for pot grows near streams, to make sure fertilizer or pesticides do not taint the water or harm fish. An engineer will monitor groundwater and water being diverted to nourish plants. Lawyers are needed to help sort out complex issues involving the state's maze of environmental laws.

Pay varies with position but can be attractive, with some scientist posts paying over $100,000 annually. Special investigators with the Consumer Affairs Department could earn in the $80,000 range.

Though not mentioned in this article, most states have funding government jobs in the marijuana arena through the fees and taxes that the marijuana industry produces for state coffers.  In a black marketplace, of course, there are no fees and taxes going to the government, though taxpayers are still paying for the costs of trying to enforce prohibition -- which, ironically, largely serves to drive up the tax-free profits that black market participants can secure.  With legalization and regulation, the monies paid by marijuana consumers gets channeled to fund state regulatory jobs that should help ensure the consumer gets a safer product at a lower cost.  From an economic perspective, it should be a win-win if all goes well (though all does not always go well, and there are other obvious concerns such as public health).

October 2, 2017 in Business laws and regulatory issues, Employment and labor law issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Taxation information and issues , Who decides | Permalink | Comments (1)

Sunday, August 27, 2017

Interesting look at job-creation aspects of Arkansas medical marijuana reform (with a notable developing national story)

BLS-LogoThis local new article form Arkansas, headlined "Medical marijuana industry expected to bring new jobs to Arkansas," provides an effective and thorough accounting of an important economic development element of marijuana reform. For that reason, I recommend the piece in full, and the excerpt below includes a bit of extra national news highlighted below that strikes me as especially notable:

A one-man testing lab in Greenbrier is poised to add up to seven employees, spend more than $1 million on equipment and buy several vehicles to capitalize on the coming sale of medical marijuana in Arkansas.  Kyle Felling, the owner of F.A.S.T. Laboratories, is one part of a burgeoning medical marijuana industry that's expected to create hundreds of jobs in Arkansas, according to industry experts and representatives....

In-state dispensaries and cultivation facilities are expected to provide the bulk of the jobs.  However, other services, like lab testing, are essential for the medical marijuana market to function.  Storm Nolan, president of the Arkansas Cannabis Industry Association, said he expects between 500 and 600 people to be employed where marijuana is grown and sold in the near term....

David Couch, the Little Rock lawyer who sponsored the Arkansas Medical Marijuana Amendment that was approved by voters in November, said he eventually expects 1,500 jobs or more in dispensaries and cultivation facilities.  Nolan and Couch said hundreds more jobs are expected in ancillary businesses, like F.A.S.T. Laboratories....

The accuracy of job estimates is expected to improve with time.  The federal Bureau of Labor Statistics will begin releasing data Sept. 6 under an updated jobs classification system that details marijuana wholesalers, stores and grower employment, David Hiles, an economist with the bureau, said in an email. ...

Specialty companies will be needed to ship, test, market, enforce, track, insure, construct, lobby, inspect, secure and bank in the industry.  However, it's an open question whether many of the businesses will be locally owned.  While the Arkansas Medical Marijuana Commission mandated that dispensaries and cultivation facilities be majority owned by Arkansans, there's no similar requirement for the businesses that will serve them.

James Yagielo, chief executive of Florida-based HempStaff, said many end up being from out of state.  "There are always some ancillary businesses," he said.  "A lot of them -- like us -- are national, but you do get some that pop up."  Nolan said he expects more ancillary businesses to enter the market as the Arkansas Medical Marijuana Commission develops licenses for transportation, distribution and processing.  Those licenses remain on the to-do list of the commission, which currently is taking applications for dispensaries and growers....

Michael Pakko, chief economist at the Arkansas Economic Development Institute at the University of Arkansas at Little Rock, said the nature of the marijuana business -- highly regulated with dispensaries and cultivation facilities required to each have unique ownership -- is costly, but can also provide additional employment....

Entry-level jobs include trimming marijuana at around $10 an hour.  Assistant growers, who plant and nourish marijuana, will earn $15 to $20 per hour.  Master growers, who manage operations, will make between $40 to $60 per hour....  Most dispensaries start with around five employees....  Each store's general manager will earn around $20 per hour. Dispensary agents, who interact with patients, will make $12 to $15 per hour.

While hundreds of jobs are expected to be created in the medical marijuana industry -- on par with a large state economic development project -- Arkansans may not feel the same impact because the jobs will be spread throughout the state, Pakko said.  "Five hundred to 600 jobs -- that would be a pretty good economic development project, but in the overall scheme of things, that's not a very large percentage of Arkansas' workforce or employment base," he said.  "Now in the local communities where those jobs are going to be, it can be a big deal.  It can be a significant impact."

In this MassRoots posting back in February, Tom Angell reported that the "U.S. Bureau of Labor Statistics (BLS) revealed to MassRoots that it will soon begin tracking cannabis sector employment ... [but] added that it won’t necessarily release any numbers."  It would now appear that BLS has data it is prepared to release in only a matter of weeks.  That strikes me as a very interesting and important development that will, among other things, make it much easier for the mainstream media to see and report on the seemingly significant job-creation realities of the emerging marijuana industry.

August 27, 2017 in Employment and labor law issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, August 14, 2017

Federal district court in Connecticut rejects preemption claims by employer sued after rescinding employment offer to medical marijuana user

I noted in this post last month the significant ruling of the Massachusetts Supreme Judicial Court in Barbuto v. Advantage Sales and Marketing, LLC, No. SJC 12226 (Mass. July 17, 2017) (available here) allowing a state-law-based civil discrimination lawsuit to proceed after an lawful medical marijuana user has been fired for a positive drug test.  This past week, as detailed in this helpful opinion summary, a similar type of decision was handed down by a federal district judge in Connecticut in Noffsinger v. SSC Niantic Operating Co, LLC, No. 3:16-cv-01938 (D. Conn. Aug 8, 2017) (available here).  Here are the basics:

In an issue of first impression, a federal district court in Connecticut found an implied private right of action under Connecticut’s Palliative Use of Marijuana Act (PUMA) and further held that federal law did not preempt the PUMA discrimination claim of a registered medical marijuana user whose job offer was rescinded after she tested positive, even though she explained to the employer that she only took synthetic cannabis at bedtime and was not under the influence at work. In finding no preemption, the court explained the federal Controlled Substances Act (CSA) does not regulate the employment relationship and that the ADA does not regulate non-workplace activity.

Here is how the opinion in Noffsinger gets started, along with a key passage from the heart of the ruling:

Connecticut is one of a growing number of States to allow the use of marijuana for medicinal purposes. Connecticut likewise bars employers from firing or refusing to hire an employee who uses medical marijuana in compliance with the requirements of Connecticut law.  By contrast, federal law categorically prohibits the use of marijuana even for medical purposes.

This lawsuit calls upon me to decide if federal law preempts Connecticut law.  In particular, I must decide if federal law precludes enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes.  I conclude that the answer to that question is “no” and that a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason.  Accordingly, I will largely deny defendant’s motion to dismiss this lawsuit....

Although most cases dealing with the CSA’s preemption of state medical marijuana statutes have come out in favor of employers, these cases have not concerned statutes with specific anti-discrimination provisions; courts and commentators alike have suggested that a statute that clearly and explicitly provided employment protections for medical marijuana users could lead to a different result.  Indeed, one court recently held that the CSA does not preempt the anti-discrimination-in-employment provision of Rhode Island’s medical marijuana statute. See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181, at *13–14 (R.I. Super. 2017).

August 14, 2017 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Tuesday, July 18, 2017

Massachusetts top court issues major ruling allowing medical marijuana user to pursue lawsuit against employer after her termination

As reported in this Boston Globe piece, headlined "Ruling means Mass. companies can’t fire workers for medical marijuana," the top court in Massachusetts issued a significant employment law ruling yesterday on behalf of a medical marijuana patient. Here are the basics from the press report:

Massachusetts companies cannot fire employees who have a prescription for medical marijuana simply because they use the drug, the state’s highest court ruled Monday, rejecting employers’ arguments that they could summarily enforce strict no-drug policies against such patients.

Supreme Judicial Court Chief Justice Ralph D. Gants said a California sales and marketing firm discriminated against an employee of its Massachusetts operation who uses marijuana to treat Crohn’s disease when it fired her for flunking a drug test.

In Massachusetts, Gants wrote, “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” Therefore, he said, employers can’t use blanket anti-marijuana policies to dismiss workers whose doctors have prescribed the drug to treat their illnesses.

Instead, antidiscrimination laws require companies to attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ, such as exploring alternative medications or allowing use of the drug only outside of work hours. The ruling overturned a lower court’s dismissal of a lawsuit against brought in 2015 by Cristina Barbuto of Brewster, who was fired by Advantage Sales and Marketing after just one day on the job because she tested positive for marijuana.

Barbuto said she told the company during interviews that she uses cannabis several nights a week — not before or during work hours — to treat her Crohn’s disease, a chronic inflammatory disorder that affects the digestive tract and can inhibit appetites. She said the local hiring manager told her it would not be a problem, and that she was blindsided by her dismissal....

Advocates called the ruling long overdue, and said they expected that other medical marijuana patients who had been fired over their use of the drug would soon contest their dismissals. “We are thrilled that the Supreme Judicial Court of Massachusetts has ruled in favor of compassion for people that use medical marijuana for a range of debilitating conditions,” the Massachusetts Patient Advocacy Alliance, which sponsored the state’s successful 2012 medical marijuana ballot initiative, said in a prepared statement.

A business group that interceded in the case, however, said the ruling would especially hurt small companies that don’t have the resources or expertise to negotiate accommodations for marijuana patients. “This is opening small business owners up to a ton of litigation,” said Karen Harned, the executive director of the National Federation of Independent Business Small Business Legal Center, which filed a brief in support of Advantage. “It’s making their lives harder because they can no longer have a clear drug-free-workplace policy.”

The decision doesn’t mean employers can never fire a patient for using marijuana medically; firms that contract with the federal government, for example, or where workers operate heavy machinery, could argue that accommodating their employees’ use of the drug constitutes an “undue hardship.” But the ruling puts the burden on employers to prove they cannot accommodate medical marijuana patients because their cannabis use impairs their ability to do required work, endangers public safety, or otherwise demonstrably endangers the business, Gants wrote.

“Employers can still prevail,” said Chris Feudo, an attorney at Foley Hoag who represents companies in employment disputes. “Employees aren’t entitled to the accommodation they want; they’re entitled to a reasonable accommodation — and sometimes, there isn’t one.” Still, Feudo said, the ruling will have “really wide implications.”

The full ruling in Barbuto v. Advantage Sales and Marketing, LLC, No. SJC 12226 (Mass. July 17, 2017), is available at this link.  And it gets started this way:

In 2012, Massachusetts voters approved the initiative petition entitled, "An Act for the humanitarian medical use of marijuana," St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is "that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana." Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff's discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.

July 18, 2017 in Business laws and regulatory issues, Court Rulings, Employment and labor law issues, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (2)

Tuesday, June 27, 2017

Notable accounting of large number of jobs in the legal marijuana industry

6-26-17-COTW-Revised-e1498251123994This new posting at Marijuana Business Daily, headlined "Cannabis industry employs 165,000-plus workers," includes this interesting chart highlighting just how many legal jobs might be linked to state-level marijuana reforms. Here is part of the text that goes with the chart:

With 165,000-230,000 full- and part-time workers, the U.S. cannabis industry has quickly become a major job generator. Cannabis-related businesses now employ more people than there are dental hygienists and bakers in the United States and will soon surpass the number of telemarketers and pharmacists.

The estimates – published in the newly released Marijuana Business Factbook 2017 – include employment data for retailers, wholesale grows, infused products/concentrates companies, testing labs and ancillary firms.  The job figures represent an impressive feat for an industry that has, for the most part, been operating legitimately only since 2009.  They also underscore marijuana’s rapid transformation out of the black market and into a viable economic force, capable of producing a host of new jobs and business opportunities for towns and communities across the country.

Employment figures were calculated using a variety of methodologies, including the use of survey data regarding the average number of employees for each type of company in the industry.  That information was then applied to the estimated number of companies in each sector to arrive at a rough idea of how many employees work in the industry. Only ancillary companies that glean a sizable portion of their revenue from the marijuana industry are included in these employment figures.

A majority of the jobs in the marijuana industry are currently with small businesses, most needing only a handful of employees to maintain daily operations.  Though the average number of employees at marijuana companies has been rising in recent years as businesses grow, the state-by-state nature of the marijuana industry has prevented companies from developing into large-scale enterprises that employ hundreds of people....

The cannabis industry is coming off a landmark year in 2016, when four states legalized recreational marijuana and another four approved measures tied to medical cannabis.  Additionally, Ohio and Pennsylvania legalized MMJ earlier in the year, while Louisiana passed a law to set up commercial cultivation and sales of medical cannabis.  Though it will take some time for these markets to fully develop, they have the potential to create tens of thousands of new jobs in the marijuana industry.

California’s recreational market alone could eventually bring in between $4.5 billion and $5 billion in annual retail sales – more than the nation’s entire legal cannabis industry generated in 2016 – so the impact adult-use legalization will have on business and employment opportunities in the state is massive.

June 27, 2017 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Saturday, June 10, 2017

Highlighting unique challenges for certain employees precluded from using medical marijuana

BuzzFeed News has this lengthy new article about employment law limitations on use of medical marijuana.  The lengthy full headline of the lengthy article serves as an effective summary: "This Firefighter Took A Doctor’s Advice To Use Medical Marijuana — Now He Could Be Fired: Medical marijuana is off-limits for police officers, firefighters, truck drivers, and millions of other workers in safety-sensitive jobs, even in states where it’s legal. These employees face a tough choice: Live with pain, or lose their job." Here is an excerpts from the start of the article:

Employees ... in jobs categorized as “safety-sensitive” — which include the millions of truck drivers, police, firefighters, paramedics, people who operate heavy machinery, airline employees, and others who are responsible for people's health or well-being — face additional hurdles. Their employers almost always have zero-tolerance drug policies, leaving workers with little choice but to swap medical cannabis for opiates or other pharmaceuticals.

At a time when the opioid epidemic is ravaging US cities and towns, supporters of medical cannabis say policies like the one that got [fire-fighter Brad] Wiltshire in trouble are outdated and dangerous. After all, tranquilizers and prescription pain pills can also affect a person's ability to do a job safely.  After his diagnosis, Wiltshire was prescribed a tranquilizer that came loaded with warnings against operating heavy machinery or driving until the user knew it was safe to do so.  Over time, he said, the tranquilizers stopped working as effectively, so he turned to medical cannabis. Not only did it help him deal with breakthrough pain, it also helped him sleep.

June 10, 2017 in Business laws and regulatory issues, Employment and labor law issues, Who decides | Permalink | Comments (0)

Friday, April 21, 2017

Heading out to speak at 2017 World Medical Cannabis Conference & Expo

Blogging in this space will be light over the next few days because I am about to travel to Pittsburgh to attend and participate in the 2017 World Medical Cannabis Conference & Expo.   As this schedule details, I am speaking tomorrow afternoon (Saturday) on a panel titled "Higher Education & Its Role in the Industry." Here is how the panel is previewed:

The cannabis industry is set to create more jobs than established industries like manufacturing by 2020.  However, there is still no clear path to getting involved in the industry or clear educational path.  Students need more courses and curriculum that teaches the fundamentals of the industry.  These include all areas of the industry including business, agriculture, research, etc.  This panel will talk about what courses are currently available for students and what still needs to be offered as well as how higher education can translate their findings into commercial services and products the industry can use to advance itself.

April 21, 2017 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Saturday, November 26, 2016

"Where Marijuana Is the Doctor’s Orders, Will Insurers Pay?"

The question in the title of this post was the headline of this recent New York Times article, which included these excerpts:

For businesses and insurers, a string of ballot victories this month for marijuana advocates are adding to an intensifying conundrum about the drug and issues such as insurance coverage, employee drug testing and workplace safety.... “We are entering this conflict between a social policy decision and a workplace that is highly regulated,” said Alex Swedlow, the chief executive of the California Workers’ Compensation Institute, a research organization.

A major part of the predicament centers on unclear science about the benefits of marijuana or the dozens of compounds, known as cannabinoids, that are found in the plant. For its part, the Food and Drug Administration has approved only a synthetic version of a cannabinoid and a similar drug for narrow uses, such as to treat nausea in chemotherapy patients or to stimulate the appetites of patients with AIDS. Typically, health insurers will pay for marijuana-related drugs only for F.D.A.-approved uses.

But state medical marijuana laws usually give doctors permission to recommend marijuana to a patient with a “debilitating” condition, a phrase that can encompass problems including glaucoma, cancer and chronic pain. Usually, patients pay for the drug themselves and several states have explicitly exempted workplace compensation insurers for covering such costs.

But as a result of recent state court rulings in New Mexico, workplace insurers there are required to pay for marijuana-based treatments if they are recommended by a doctor. And lower courts in Connecticut, Maine, Massachusetts and Michigan have issued rulings directing workplace insurers to do so. The number of patients receiving such coverage is small. And because marijuana is illegal under federal law, insurers paying for the drug must use a financial workaround to avoid violations. One strategy is to reimburse patients for their costs rather than make a direct payment to a marijuana dispensary....

Despite the push toward legalization, few employers have dropped marijuana from the list of drugs for which employees are tested, compounds that typically include opioids, amphetamines and cocaine... As marijuana legalization expands, there are also concerns about its effect on workplace safety. Some studies suggest that marijuana use can impair a person’s judgment, though little data exists to compare the effect with that of other drugs like opioids.

In states where recreational use is allowed, the problem for employers becomes one of determining when an employee used marijuana, because detectable levels of it remain in the body for days afterward. As a result, employers must use more subjective observations to judge whether an employee has become impaired from using marijuana while at work, said Ethan Nadelmann, the executive director of the Drug Policy Alliance, a group that supports legalization.

As for Mr. Vialpando, the disabled worker in Santa Fe, he and his wife say they have all the evidence they need that medical marijuana works. Mr. Vialpando said that during the decade he used opioids, he withdrew from his family and friends, preferring to spend time by himself, watching television. He lost interest in food and developed sleep apnea — his wife used to wake up terrified at night because it appeared that he was dying.

These days, he smokes about four marijuana cigarettes daily. He said he had gained weight, enjoyed talking again and had resumed working on hobbies at home. His wife, Margaret, said that she hoped President-elect Donald J. Trump, when he takes office, will make marijuana a legal drug by changing how it is regulated. “I feel like I’ve gotten my husband back,” she said. “His personality has come back to the person that he used to be.”

November 26, 2016 in Employment and labor law issues, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, November 9, 2016

Responding to election results, NFL Players Association moving forward on studying marijuana for pain relief

Images (2)As many like to say, elections have consequences.  And this new Washington Post article highlights one really interesting and surprisingly quick consequence of all the marijuana election results.   The lengthy article is headlined "As more states legalize marijuana, NFLPA to study potential as a pain-management tool," and here are excerpts:

In the aftermath of a new set of states legalizing marijuana use in the national elections, the NFL Players Association said Wednesday it is forming a committee to actively study the possibility of allowing players to use marijuana as a pain-management tool.

The union is forming an NFL players pain management committee that will study players’ use of marijuana as a pain-management mechanism, among other things, though the union has not yet determined if an adjustment to the sport’s ban on marijuana use is warranted.

“Marijuana is still governed by our collective bargaining agreement,” George Atallah, the NFLPA’s assistant executive director of external affairs, said in a phone interview Wednesday.  “And while some states have moved in a more progressive direction, that fact still remains.  We are actively looking at the issue of pain management of our players. And studying marijuana as a substance under that context is the direction we are focused on.”

A growing push from players within the sport, plus an ongoing national medical conversation over the benefits of marijuana and the dangers of opiate-based painkillers, have increased scrutiny on the league’s rules that ban the drug.  This also comes as voters in California, Nevada and Massachusetts approved recreational marijuana use Tuesday, joining four other states and Washington, D.C., in enacting similar laws. Florida, Arkansas and North Dakota voters legalized medical marijuana use, bringing the total of states with such measures to more than two dozen.

But marijuana use remains prohibited under the drug policy collectively bargained between the NFL and the NFLPA, and both parties would need to agree to any changes to that policy.  Players are tested for marijuana and can be fined or suspended without pay for positive or missed tests.  The union’s contemplation of approving marijuana as a pain-management mechanism for players had begun before Tuesday’s voting.

Some players, including former Jacksonville Jaguars and Baltimore Ravens offensive lineman Eugene Monroe, argue that marijuana is safer than the painkillers commonly used by players and its use should be permitted by the sport for pain-management purposes....

Some contend that the increasing number of states to legalize marijuana use should impact the NFL’s view. “There is no health and safety reason for marijuana being on the banned list and now the legal rationale has crumbled,” a person on the players’ side of the sport said Wednesday, speaking on the condition of anonymity because of the sensitivity of the topic.

Some medical experts are also advocating for cannabis-based treatment over some current painkillers, noting the addiction and overdose potential of opioids. In 2014, 19,000 deaths were attributed to overdoses from prescription pain medication, according to the American Society of Addiction Medicine. Prescription painkillers have also been cited as a gateway to heroin use.

“In my mind, there’s no comparison if we just started from scratch in the year 2016 and looked newly at which class of drugs worked better to treat pain and side-effect profile up to and including death, in the case of opioids,” Daniel Clauw, a University of Michigan professor who has performed studies comparing opioids and cannabis, told the Post in June. “You put the two next to each other, and there really is no debate which is more effective to treat pain. You would go the cannabinoid route instead of the opiate route.”

Cannabidiol, or CBD, an anti-inflammatory extracted from cannabis, could potentially help players as a preventative measure against one of the most pressing issues facing the NFL: concussions. Lester Grinspoon, a professor emeritus at Harvard and one of the first medical marijuana researchers, said in an interview with the Post earlier this year that “evidence shows CBD is neuroprotective. I would have each individual take a capsule an hour or two before they play or practice. It’s better than nothing.”...

The current collective bargaining agreement between the league and union runs through 2020. But the two sides review the sport’s drug policies annually and sometimes make adjustments. In September 2014, the league and union agreed to raise the threshold for what constitutes a positive test for marijuana from 15 nanograms per milliliter to 35 nanograms per milliliter. A nanogram is one-billionth of a gram....

The league has come under fire recently for the length of suspensions given for marijuana use compared to other violations, such as the initial suspensions for domestic violence incidents assessed to then-New York Giants kicker Josh Brown (one game) earlier this season and then-Baltimore Ravens running back Ray Rice (two games) in 2014....

Gabriel Feldman, the director of the sports law program at Tulane University, said the NFL and NFLPA face a practical and perhaps political decision about marijuana, but not one of compliance with shifting state laws. “There are substances on the banned substances list that are not illegal,” Feldman said in a phone interview. “The league and the Players Association can make the determination under the CBA that substances that are legal can be on the banned substances list. . . . [Conversely the league] doesn’t have to test for it just because it’s illegal.

“The league is certainly not bound by the laws of individual states in terms of whether they test or don’t test. There are some who might say that alcohol should be a banned substance even though it’s legal. Ultimately it’s up to the league and the players to decide.”

The momentum of the marijuana-legalization movement potentially could influence the NFL’s thinking, Feldman said. “It may,” Feldman said. “I would think that both the league and the players are continuing to study the issue and continuing to study whether it makes sense. Certainly as the laws change, that might inform their decision and we may see action. [But] the league also has a uniformity issue. Even if the federal prohibition is lifted and it’s legal in some states and illegal in other states, the NFL might have an interest in maintaining uniformity in its policy.”

November 9, 2016 in Employment and labor law issues, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Sports, Who decides | Permalink | Comments (1)

Monday, November 7, 2016

"The Economic Impact of Marijuana Legalization in Colorado"

The title of this post is the title of this recent report produced by the Marijuana Policy Group, which describes itself as a "non-affiliated entity dedicated to new market policy and analysis [seeking] to apply research methods rooted in economic theory and statistical applications to inform regulatory policy decisions in the rapidly growing legal medical and recreational marijuana markets." Here is part of the report's synopsis:

The Marijuana Policy Group (MPG) has constructed a new model that accurately integrates the legal marijuana industry into Colorado’s overall economy. It is called the “Marijuana Impact Model.”  

Using this model, the MPG finds that legal marijuana activities generated $2.39 billion in state output, and created 18,005 new FullTime-Equivalent (FTE) positions in 2015.  Because the industry is wholly confined within Colorado, spending on marijuana creates more output and employment per dollar spent than 90 percent of Colorado industries....

Legal marijuana demand is projected to grow by 11.3 percent per year through 2020.  This growth is driven by a demand shift away from the black market and by cannabis-specific visitor demand. By 2020, the regulated market in Colorado will become saturated.  Total sales value will peak near $1.52 billion dollars, and state demand will be 215.7 metric tons of flower equivalents by 2020. Market values are diminished somewhat by declining prices and “low-cost, high-THC” products.

In 2015, marijuana was the second largest excise revenue source, with $121 million in combined sales and excise tax revenues.  Marijuana tax revenues were three times larger than alcohol, and 14 percent larger than casino revenues. The MPG projects marijuana tax revenues will eclipse cigarette revenues by 2020, as cigarette sales continue to decline.  Marijuana tax revenues will likely continue increasing as more consumer demand shifts into the taxed adult-use market.

As a first-mover in legal marijuana, the Front Range has witnessed significant business formation and industry agglomeration in marijuana technology (cultivation, sales, manufacturing, and testing).  This has inspired a moniker for Colorado’s Front Range as the “Silicon Valley of Cannabis.”  Secondary marijuana industry activities quantified for the first time in this report include: warehousing, cash-management, security, testing, legal services, and climate engineering for indoor cultivations.

November 7, 2016 in Business laws and regulatory issues, Employment and labor law issues, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Sunday, August 28, 2016

Does marijuana legalization at least partially account for the remarkable recent popularity of Colorado Law?

Colorado_law_logoThe question in the title of this post is prompted by this notable Colorado University news item headlined "Colorado Law receives record number of applications." Here are the details leading to my marijuana-inflused speculation, with my added emphasis throughout the piece:

Applications to the University of Colorado Law School are up 38 percent, setting a record for the most applications ever received in an admissions cycle and the highest median GPA of an incoming class.   With 170 individuals, the University of Colorado Law School’s incoming class of 2019 is the most selective and academically competitive in the school’s history.   The 2016-17 admissions cycle set the school’s record for number of applications and highest median GPA of an incoming class.

This year, Colorado Law received 3,299 applications for the class of 2019 — a 38 percent increase from last year and the most applications ever received in an admissions cycle.  The larger applicant pool allowed for more selectivity, which boosted the median GPA to the highest in the school’s history (3.69). The median LSAT score (162) for the class of 2019 is also higher than that of previous classes.  “I am thrilled that more people have discovered that the experience at Colorado Law is very special,” said S. James Anaya, dean of the law school.  “Our supportive community, dedicated faculty, cutting-edge scholarship, and innovative programs — not to mention our success on the employment front — all make Colorado Law a terrific place to be.”

This year marks the continuation of an upward trend in Colorado Law’s admissions numbers.  In 2015-16, Colorado Law welcomed its largest class ever, at 205 individuals — a 22 percent increase from the previous year.  Applications to Colorado Law increased 10 percent that year, at the same time that law school applications nationwide were down for the fifth year in a row

I am disinclined to assert that hundreds (and perhaps even thousands) of prospective law students are now applying to the University of Colorado Law School just so they can legally relax with cannabis as well as with Coors after a tough week of classes.  But  marijuana reform has surely contributed to the recent success of the Colorado economy and this success surely produces unique benefits and opportunities for law students and junior lawyers.  Especially at a time when prospective law students are focused on employment prospects during and soon after law school, I think it fair to suggest marijuana legalization at least partially accounts for why Colorado Law is  so uniquely attractive to law school applicants during an era when most law school continue to struggle with a significant decline in applications.

(I must note for the record that I had the honor and pleasure to teach a special one-week course on Marijuana Law & Policy as a visiting professor at University of Colorado Law School in January 2016.  For that reason (and especially because of the terrific students I meet at Colorado Law), I certainly have a fond spot in my heart for this institution.  But if I really wanted to make this post entirely marijuana-focused and self serving, I would be inclined to add (with tongue firmly planted in cheek) that there is notable connection in 2016 between extra teaching of marijuana law at Colorado Law and a huge increase in applications there.)

UPDATE: I now realize I need to give credit to Paul Caron for first breaking this story with detailed data in this post yesterday under the (punny?) headline "Colorado Law School Enjoys All-Time High"

August 28, 2016 in Employment and labor law issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Friday, May 27, 2016

Notable Forbes discussion of "The Five Best Marijuana Jobs"

ImagesRegular readers know I strongly believe that the economic development aspects/consequences  of marijuana reform are very significant and yet too often overlooked.  Consequently, I was intrigued and happy to see this notable new Forbes article about the best marijuana jobs.  Here are excerpts:

The marijuana industry is growing quickly and just as quickly gaining wider societal acceptance.  As such, more people are looking at the cannabis industry as a career choice. Some of the jobs are little out of the ordinary, but that’s probably what draws many workers interested in cannabis jobs. Whether they worked with marijuana in the black market or just want an alternative to the standard cubicle job, thousands are trying to get in.

There are websites with cannabis job listings like Cannajobs and 420careers.  Medical marijuana delivery company GreenRush held a job fair in California in April; 2,700 people attended and 200 jobs were filled. Another event is planned for November 10.

Cannabis company Terra Tech Corp. recently held a job fair in Las Vegas. They ran a quarter page ad and expected about 200 people to show up. They got 2,000 instead. “Most people just want to get into the space,” said CEO Derek Peterson. “They believe in the product.” Peterson said a lot of people came without any experience and since the jobs are unique, they tried to pair existing skills with new job requirements.

He also noted that a lot of people in the 40-50 age group have been aged out of the traditional workforce. “Almost everyone had a bachelor’s degree that we saw,” he said. While some positions like store managers overlap more traditional jobs, others like bud trimmers are truly unique to the space. Here are the top five jobs in the marijuana industry.

Grow Master

The grow master is the person responsible for cultivating various strains of marijuana plants. Peterson likens it to being a master chef. Grow masters are in high demand and it’s a seller’s market. At minimum they can command a salary of $100,000 a year and a percentage of the profit....

Store Managers

Like any retail operation, a medical dispensary or recreational outlet needs a manager. These employees can do very well, especially in profitable stores. At minimum, they can earn $75,000 a year and many get a bonus on top of that based on the store’s sales. When you consider that some stores in California have sales of $3 million to $6 million a year, while some San Francsico Bay area stores do $7 million to $10 million a year, that bonus can be pretty good....

Extraction Technician

Most people only think of marijuana in the plant form, however marijuana extracts are a growing side of the business. These “extract artists” have a unique set of skills. Peterson said many of the people he hires for this job have PhD’s. They can earn between $75,000 and $125,000 a year. Some states don’t like the idea of people smoking pot for medical purposes and like the state of New York have only legalized medical marijuana in the extract form....

Bud Trimmers This is the entry level job working with the plant. It tends to be the lowest paid job in the industry — a bud trimmer in California may make $12-$13 an hour. In Vegas where service jobs are in high demand, $13 an hour is the general wage. Some get paid by the pound and that can run to $100-$200 a pound. In a medical dispensary, a trimmer takes the plant and with little scissors cuts the flower from the stem....

The Owner

While owning a marijuana business sounds like the ultimate counterculture move, it brings a mountain of headaches. Many owners say they don’t make the millions that many people think they do. There are legal and banking headaches, and the regulatory landscape is constantly shifting. The owners don’t get to claim the same business deductions that other business owners get, so the expenses are sky high. Many owners front millions of dollars for years before they ever get to see any profits.

May 27, 2016 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Sunday, October 4, 2015

Rural Illinois excited by economic development potential of medical marijuana reform

Download (2)This AP article, headlined "Legal Marijuana Stirs Hope in Illinois Town," highlights the on-the-ground reality that I believe will sustain marijuana reform: local economic development. Here are excerpts:

A skunky aroma fills the room in which hundreds of lush marijuana plants grow, some nearly ready for harvest. Grower Ashley Thompson, a former high school agriculture teacher in this rural part of southeastern Illinois, takes the scent of weed home with her.

She doesn't mind. It's the fragrance of money and jobs. "My family says I smell," said Thompson, who quit the classroom to work for Ataraxia, one of a handful of cultivation centers in Illinois, which is one of 23 states with medical marijuana. "I can't tell though."

The Associated Press recently gained an exclusive look at Illinois' first legal marijuana crop, and the new farmland ritual beginning amid surrounding cornfields in the historic town of Albion: the harvest of medical marijuana that will soon be sold in dispensaries around the state.

Ataraxia is the first center to make it to the finish line after running a gantlet of state requirements. For the company to find a home in Albion — where grain trucks rumble past the sleepy central square, cicadas drone in the trees shading a century-old courthouse and a breeze touches an empty bandstand — is paradoxical. Stores can't sell package liquor, but marijuana has been welcomed as a badly needed source of employment.

A comical T-shirt for sale says the town is "High and Dry." Cheryl Taylor, who sells the shirts at her shop on the square, said the marijuana facility has everyone curious: "It's brought our little town to life."

Down a country road, tucked behind the New Holland tractor dealer and the Pioneer seed plant, the history-making cannabis crop is being cut and dried behind the locked doors of a giant warehouse. By mid-October, strains with names like Blue Dream, OG Kush, Death Star and White Poison will be turned into medicine in many forms: oils, creams, buds for smoking, edible chocolates and gummies.

It's been a twisting path to harvest, marked by delays and a secretive, highly restrictive program meant to avoid the creation of easy-access pot shops seen in other states. Until Illinois gave approval in late September for the AP's tour, only company workers and government inspectors had been inside the warehouse. Thousands of cannabis plants — some in full bud, coated with cannabinoid-rich fibers — filled two large rooms at the facility on the day of the AP's tour. Mother plants and young plants started from cuttings had their own, smaller rooms.

The 1,900-person community of Albion, which is closer to Louisville, Kentucky, than Chicago, has embraced all this, sight unseen. "It's a good thing for the local economy," said Doug Raber, who sells insurance. "This is a pretty conservative area. Any kind of revenue we can have here is good."

Local developers sold a cornfield to Ataraxia for $5,000 an acre, which real estate agent Randy Hallam said is a 50 percent discount. The city also paid to build a road and extend water and sewer lines. The company hired locals to build and outfit the warehouse.

But only seven people, aside from managers, have been hired permanently. With only 3,000 approved medical marijuana patients, the company can't expand yet. CEO George Archos said he wants to hire 50 to 60, and meeting that goal will go a long way to keeping the community's support. "Albion needs to diversify its employment," said Duane Crays, editor of The Navigator, Albion's newspaper. Chief employers regionally are agriculture, oil and gas production, and an auto filter plant....

Residents' excitement over the health benefits of marijuana — from stimulating appetite in cancer patients to easing stiffness for people with multiple sclerosis — may also have historic roots. The bandstand marks the spot where a mineral spring once drew patients suffering from a host of ailments; it was said the water could cure. "My wife has MS," Hallam said. She doesn't have her patient card yet, he said, "but she has a doctor's appointment coming up."

October 4, 2015 in Employment and labor law issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, October 1, 2015

Could marijuana reform in part explain application and enrollment boost at University of Colorado Law School?

The question in the title of this post was the thought that kept coming to mind as I read this interesting article headlined "CU-Boulder law school sees enrollment boom as numbers fall nationally."  As those in and following closely the law school industry know all too well, both applications and enrollment has been way down at most law schools nationwide over the last few years.  But, as the article explains, the flagship school in a flagship state for marijuana reform now has a different story to tell:

At a time when interest in attending law school appears to be waning across the country, the University of Colorado Law School this fall has seen a 22 percent increase in first-year students. CU's newest crop of law students totals 205, up from 168 students in the first-year class of 2014.

Though they're still trying to determine the exact cause of the enrollment boost, Colorado Law administrators contend that the school is in a desirable location and has a reputation for putting students in jobs after graduation. "We've been really working hard at communicating our value proposition and why Colorado Law is a special place to be," Dean Philip Weiser said. "We are getting that story out there. That story picks up on the fact that we are really helping our students on the job front."

Since 2005, CU's first-year law classes have hovered between 160 and 180 students each year. The American Bar Association reported that fall 2014 first-year enrollment levels in the United States, the most recent data available, were the lowest since 1973. The 2014 new student enrollment figure represented a 4.4 percent decrease from 2013 and a 27.7 percent decrease from 2010, when first-year law school enrollment peaked. Nearly two-thirds of association-approved law schools experienced first-year enrollment declines last year....

It seems that trend is continuing into 2015, though official enrollment numbers aren't yet available. The Law School Admission Council reported in August that applications were down 4 percent from 2014. Despite that, applications to Colorado Law increased in 2015 to 2,383, up from 2,180 applications in 2014.

CU admitted a few more students this year and saw an increased yield rate, or the number of students who enrolled after being admitted. This year, the yield rate was about 19 percent, compared to 15 percent in 2014.

At the same time, the academic qualifications of the 2015 entering class stayed roughly the same as those of the 2014 class, Weiser said. The median LSAT score stayed the same and the median cumulative grade point average declined from 3.62 in 2014 to 3.6 in 2015.

Roughly 70 percent of the entering class of 2015 came from outside of Colorado, up from 59 percent in 2014. Weiser believes the law school's setting and collaborative environment drew students to Boulder this year. "Part of the story is Colorado," Weiser said. "One is that our community in Colorado is a special community that really wants to help each other and collaborate and that cultural appeal resonates."

He said the law school has always been less reliant on large, corporate law firms than other schools. Instead, Colorado Law graduates tend to be more innovative in their career choices. "We have a very entrepreneurial student population, alumni population, who have done all sorts of interesting things," Weiser said. "There are lots of opportunities for smart people who are creative, who know how to communicative, know how to analyze. "I remain excited about what our students are going to be able to do and the careers they're going to be able to have."

Not surprisingly, marijuana reform is not mentioned in this article as a reason for the uptick in both applications and entering students, but the fact that a much larger percentage of students in the entering class came from outside the state is notable and certainly reinforces my speculations. In addition, I am certain that marijuana reform has helped the overall Colorado economy and the business needs for legal help in a highly-regulated industry.

October 1, 2015 in Business laws and regulatory issues, Employment and labor law issues, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, August 7, 2015

Why heartland could warm to weed: "Rural Maryland sees jobs, not vice, in medical marijuana"

The title of this post is partially the headline of this local article and partially my spin on why I think the potential economic developments of a lawful marijuana marketplace could be of greatest long-term political and social importance.  Here is how the interesting article gets started:

Washington County is a proudly conservative place. Voters here haven’t backed a Democrat for president since 1964, and same-sex marriage lost by a landslide in a referendum three years ago.

But when Chicago-based Green Thumb Industries pitched a proposal to put a medical-marijuana production plant here, the county’s five county commissioners — Republicans all — passed a resolution unanimously supporting the plan.

Residents of Hagerstown, the county seat, seem to be taking the news in stride. The consensus: yes to marijuana for relieving pain, no to recreational use. “I think it’s all right as long as it’s only for medical. I don’t want a lot of potheads,” said Leo ­Myers, 61, a security worker at the Mack Truck plant.

It isn’t just compassion for suffering patients that is driving the acceptance of medical marijuana in Washington County, although that is one factor. Here and in other rural counties from Western Maryland to the Eastern Shore, officials are looking at cannabis grower-processors as sources of jobs rather than purveyors of vice.

Unemployment in this county has eased since it soared into double digits during the recession. But at 6.1 percent, the rate remains higher than the statewide average of 5.6 percent. And many residents have to commute 90 minutes or more to jobs in or near the District. Decent-paying jobs closer to home are much in demand.

“Out in Western Maryland, we’ve been deprived and depressed a lot,” said Commissioner John Barr. That history has helped shape reaction to the possibilities created by Maryland’s legalization of marijuana for medical purposes. “We view it as an economic-development opportunity,” Barr said.

Green Thumb representatives who briefed the commissioners before last month’s vote said the facility would employ 30 to 50 employees in its first year and predicted that it would expand to 200 workers in a new 175,000-square-foot plant in two to four years. They predicted the venture would give a $4 million-to- $7 million boost to the local economy.

That is hardly an economic panacea, but it represents a significant lift for a county still reeling from 650 layoffs at a Citigroup mortgage-servicing center and the closing of Unilever’s Good Humor ice cream plant, with its 450 jobs, in recent years.

The board’s action illustrates how quickly attitudes are changing across Maryland about the medicinal use of cannabis — the industry’s preferred term and one that was written into state law this year. “There’s a lot of interest all over the state,” said Hannah Byron, executive director of Maryland’s Medical Cannabis Commission.

August 7, 2015 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Political perspective on reforms | Permalink | Comments (0)

Friday, July 3, 2015

"The Legal Business Of Marijuana Is Growing But The Industry Lacks Diversity"

The title of this post is the headline of this notable new NPR Morning Edition segment.  Here is the piece's textual teaser:

The business of selling marijuana legally — for medical and recreational purposes — is expanding. But so are concerns that African-Americans are being shut out of this new industry.

July 3, 2015 in Business laws and regulatory issues, Employment and labor law issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues | Permalink | Comments (0)

Monday, June 15, 2015

Colorado Supreme Court affirms statutory interpretation permitting dismissal of medical marijuana user

As reported in this local article, a long awaited Colorado Supreme Court ruling concerning application of the state's employment laws for marijuana user finally was handed today.  Here are the basics:

The Colorado Supreme Court on Monday affirmed lower courts' rulings that businesses can fire employees for the use of medical marijuana — even if it's off-duty. The 6-0 decision comes nine months after the state's highest court heard oral arguments in Brandon Coats' case against Dish Network. Coats, who had a medical marijuana card and consumed pot off-duty to control muscle spasms, was fired in 2010 after failing a random drug test.

Coats challenged Dish's zero-tolerance drug policy, claiming that his use was legal under state law. The firing was upheld in both trial court and the Colorado Court of Appeals. When the case went to the state Supreme Court, legal observers said the case could have significant implications for employers across Colorado. They also noted that the ruling could be precedent-setting as Colorado and other states wrangle with adapting laws to a nascent industry that is illegal under federal law.

As such, the question at hand is whether the use of medical marijuana — which is in compliance with Colorado's Medical Marijuana Amendment — is "lawful" under the state's Lawful Off-Duty Activities Statute. That term, the justices said, refers to activities lawful under both state and federal law.

"Therefore, employees who engage in an activity, such as medical marijuana use, that is permitted by state law but unlawful under federal law are not protected by the statute," Justice Allison H. Eid wrote in the opinion. The justices said the court will not make a new law. Current Colorado law allows employers to set their own policies on drug use.

Coats' attorney Michael Evans, of Centennial-based The Evans Group, called the decision "devastating."

"For people like Brandon Coats, there really isn't a 'choice,' as MMJ is the only substance both he and his (Colorado-licensed) physicians know of to control his seizures due to his quadriplegia," Evans said. "He has to have it. " A silver lining of the decision, Evans said, is that it provides clarity in a "scary, gray area" of state law.

"Today's decision means that until someone in the House or Senate champions the cause, most employees who work in a state with the world's most powerful MMJ laws will have to choose between using MMJ and work," Evans said in a statement....

Sam Kamin, a law professor at the University of Denver, said the justices' decision comes as no surprise. "It's easy to make too much of this decision," he said. "It really comes down to interpreting this one word in this one statute." As a matter of statutory interpretation, the court got it right, he said.

But for Coats and medical marijuana advocates, this is a blow, Kamin said. Coats was a "dream plaintiff" in that marijuana served as medicine, he said. Coats was rendered a quadriplegic by a car accident and used marijuana to control leg spasms.

The cause likely would land in the hands of the state legislature, Kamin said. "I think (Coats') case is very sympathetic, and I think his case would be quite compelling before the legislature," Kamin said.

The full ruling in this notable state Supreme Court can be accessed at this link, and the only thing I find surprising is why it took the Colorado justices a full nine months to resolve this matter.

In addition, though I fully understand the disappointment felt by Coats and his lawyer, I share Sam Kamin's view that this ruling is not that big a deal. This ruling does not mean state employers must dismiss marijuana users, only that they are not required by statute to keep such users who comply with state law employed. Ultimately, this case only would have been a very big deal if it had come out the other way. And, especially as more and more state legalize medical marijuana, I suspect more and more employers will become more eager to make accomodations for medical marijuana patients.

June 15, 2015 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (0)