Wednesday, October 14, 2020
"Say 'No' to Discrimination, 'Yes' to Accommodation: Why States Should Prohibit Discrimination of Workers Who Use Cannabis for Medical Purposes"
The title of this post is the title of this notable new paper authored by Anne Marie Lofaso and Lakyn Cecil recently posted to SSRN. Here is its abstract:
This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.
Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization likely hindered the medical development of cannabis for at least a century. American society’s negative perception of cannabis began to yield, however, as scientific evidence of cannabis’s healing capacity gained popularity. Increased demand for medicinal cannabis resulted in a clash of perceptions between marijuana, the demonic influencer of immoral or criminal behavior, and cannabis, the angelic healer. It is this cognitive dissidence that helps explain the strange result of Brandon’s case.
Part II surveys the role of employment law in protecting employees who use cannabis for medical purposes. We explore the public policy exception to at-will employment and various federal and state disability statutes. We conclude that judges can and should apply these measures to protect workers who may be vulnerable to discharge because of their cannabis use.
Democracies cannot and should not depend on judges to make important changes in public policies, even when those changes are to common law doctrines created by judges in the first place. Part III surveys two states’ statutes—those of Nevada and Oklahoma—that protect workers who use medical cannabis from employment termination. Applying the knowledge gained from Part II, we collated what we believed to be the best language from the statutes of those two states and rewrote Colorado’s constitution in a manner that would account for employees’ interests and employer’s legitimate concerns.
Part IV acknowledges that employers may be slow to change their medical cannabis policies. With this reality in mind, we review some best practices as to how employers can accommodate cannabis use among its workers, including appropriate exceptions to an accommodation policy that take into account employer’s legitimate business interests without cutting into the essential accommodations medical cannabis users need to become or remain productive members of the U.S. workforce.
Thursday, April 23, 2020
One final student presentation in my Marijuana Law, Policy & Reform seminar focused on employment law. Here is the student's description of her topic and some background readings she provided:
My presentation will explore how the legislative requirement that employers accommodate versus not accommodate medical marijuana use impacts the facial validity of medical marijuana statutes. In doing so, I will analyze how state disability statutes interact with the federal Controlled Substances Act and the doctrine of preemption. Ultimately, using language that specifically does not require employers to accommodate medical marijuana use best protects the interests of those who require such use by avoiding challenges to the statute’s validity.
For some background reading on anti-discrimination provisions, preemption, and employment, take a look at the links below:
Wednesday, April 15, 2020
Continuing to provide in this space background on from students who are "taking over" Marijuana Law, Policy & Reform seminar through presentations on research topics of their choice, the second presentation this week will focus on employment law issues. Here is how the student working on this topic describes her plans along with background readings she has provided:
While marijuana is legal in some form in thirty-three states, it does not mean that any citizen of those states is immune to negative repercussions for their legal consumption. Even where medical marijuana is legal, not every state guarantees legal protections. My presentation will center on the current state of consumer rights, specifically in the realm of employment. Just as states vary on legalization, few states agree on how marijuana consumption should be treated in an employment context. Many states are hesitant to require an employer to change its hiring or drug-enforcement policies, despite the change in marijuana law. Other states provide employment protections by forbidding an employer from retaliating against an employee for any legal activity performed outside work so long as it does not affect the employee’s ability to perform, without regard to marijuana specifically. I will explore the current trends in employee protections as marijuana law gradually becomes more robust and organized.
The Sham Of Drug Testing For Benefits: Walker, Scott And Political Pandering (old, but still very good)
Thursday, March 26, 2020
In a post-COVID economy, will job creation and tax revenue from marijuana reform become irresistible?
Even before we have a real handle on the public health tragedy created by the coronavirus in the US, the economic fallout is already profound as represented by just one headline this morning: "A record 3.3 million Americans filed for unemployment benefits as the coronavirus slams economy." The Chair of the Federal Reserve is now saying "We may well be in a recession,” and the Treasury Secretary has been talking about a possible 20% unemployment rate. Though I do not know how extreme will be our economic struggle in the weeks and month ahead, I do know that advocates for marijuana reform are likely to waste no time stressing the potential job creation and tax revenue benefits from marijuana reform. As this title of this post suggests, I cannot help but wonder if in many states, and maybe even at the federal level, an economic development argument for marijuana reform may start to become nearly irresistible.
I do not have the time right now to do a comprehensive review of pre-COVID press pieces and articles and reports making much of the varied potential economic benefits of marijuana reform. But this haphazard collection of titles and links provides a flavor for what I expect we will be hearing a lot from marijuana reform advocates in the weeks and months ahead:
UPDATE: I just saw this new Yahoo Finance article headlined "Coronavirus could accelerate US cannabis legalization." Here are excerpts:
DataTrek Research’s Jessica Rabe writes in a note, “there’s a simple and effective solution for states and cities to help cover their huge budget shortfalls after the COVID-19 pandemic subsides: legalize recreational sales of marijuana.”...
“We’ve been thinking a lot about how life will change post-virus, and one big difference will be that state and local governments are going to encounter large unexpected tax receipt shortages,” Rabe wrote. “That’s particularly true when it comes to sales and income taxes amid stressed consumer balance sheets and massive layoffs. And unlike the Federal government, states can’t print unlimited amounts of money.”
Legalization of cannabis for adults, Rabe points out, could be a really easy way to shore up tax basis without driving people out of state, as raising income tax might do. Already it has been successful at raising “hundreds of millions of dollars annually in states like Colorado,” she said.
March 26, 2020 in Employment and labor law issues, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Taxation information and issues , Who decides | Permalink | Comments (0)
Sunday, February 9, 2020
This story at Leafly, headlined "Cannabis Jobs Report: Legal cannabis now supports 243,700 full-time American jobs," reports on Leafly's effort to account for job creation in the legal marijuana industry. Here are excerpts:
How many jobs are there in the legal marijuana industry? Leafly’s annual Cannabis Jobs Report found 243,700 full-time-equivalent (FTE) jobs supported by legal cannabis as of January 2020.
Even in a down year, the marijuana industry added 33,700 jobs. That’s a 15% year-over-year increase. Over the past 12 months the expanding industry has created 33,700 new jobs nationwide, making legal marijuana the fastest-growing industry in America.
This year’s jobs count found Massachusetts, Oklahoma, and Illinois leading the employment expansion. As its adult-use market passed its one-year anniversary, Massachusetts added 10,226 jobs. Meanwhile, Oklahoma’s robust medical marijuana industry added more than 7,300 jobs in the past year.
Florida also saw amazing growth in 2019. With more than 300,000 registered medical marijuana patients, Florida now has the most medical patients of any state. That growth in the patient base, along with the start of smokeable flower sales, boosted Florida to a 93% increase in total sales....
California remains America’s biggest legal cannabis employer. But Colorado may be the nation’s biggest per-capita marijuana job market, with one job per 165 residents. California, by contrast, offers one job per 980 residents.
Colorado also continues to outpace Washington state. Both states legalized cannabis for all adults in 2012, but Colorado’s industry boasts nearly 10,000 more jobs than Washington, even though Washington boasts nearly two million more residents.
Both Colorado and Washington posted strong 8% growth six years after their retail stores opened, indicating that legal stores are still drawing customers away from illicit sellers, and steadily attracting more adult consumers from non-traditional demographics.
Leafly’s full report, which includes includes a state-by-state analysis of all medical and adult-use states, is available at this link.
Monday, May 20, 2019
The title of this post is the title of this paper recently posted to SSRN authored by Tyler G. Aust, who just recently graduated from The Ohio State University Moritz College of Law. This paper is now the four of what will be an on-going series of student papers supported by Drug Enforcement and Policy Center. (The first three papers in this series are linked below.) Here is this latest paper's abstract:
The proliferation of legal marijuana foretells an uncertain future for businesses that implement zero-tolerance drug policies. In states where recreational marijuana is legal, businesses still have the power to enforce drug policies through employment contracts. That changed in Maine, where state law prohibits employers from making adverse employment decisions based solely on an employee’s off-duty use of marijuana. As legalization efforts sweep across the Midwest, it is unclear whether other states will follow Maine’s model. Some businesses have already relaxed pre employment marijuana testing amid labor shortages. To prepare for the future, employers should revise their drug policies to distinguish between on-duty and off-duty marijuana consumption and allow employees to use marijuana outside of the workplace.
Prior student papers in this series:
- "The Canna(business) of Higher Education"
- "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'"
- "Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"
Friday, May 17, 2019
Governing has this effective new piece on employment law's intersection with marijuana reforms under the headline "Can Medical Marijuana Get You Fired? Depends on the State." The subheadline highlights a theme of the piece: "Less than half of the states where the drug treatment is legal protect patients from employment discrimination. Courts have generally sided with employers -- until recently." Here are excerpts:
In most states, you can use medical marijuana without getting arrested -- but it could still get you fired. While 33 states have legalized cannabis for medicinal purposes, fewer than half of them protect patients from being fired or rejected for a job because of a positive cannabis test or simply because they're registered on a medical marijuana database. This legal haziness has sparked lawsuits across the country.
Courts have generally sided with employers, says Peter Meyers, a law professor at George Washington University. This was the case in 2006 in Oregon and in 2009 in Montana. More recently, however, judges have shifted their verdicts in favor of employees. In New Jersey last month, an appeals court ruled that medical marijuana use is covered under the state's ban on disability-based employment discrimination. This case follows similar rulings in Connecticut, Massachusetts and Rhode Island. As more states legalize the drug treatment, the battle will continue in the workplace.
“The big problem is [marijuana] remains illegal federally except for narrow exceptions,” says Meyers, who has written about the constitutionality of drug testing. “There’s this conflict, and a lot of the court rulings have deferred to federal law. It’s a very confusing situation.” The legal contradiction has left a lot of employers, and employees, uncertain about what rules to follow.
Bipartisan legislation to protect medical marijuana patients from employment discrimination has been introduced in Congress, but it only applies to federal workers and has yet to gain traction. With the federal government unlikely to change its marijuana policy any time soon, states are left to make their own rules. In 14 of them, medical marijuana patients have explicit employment protections either through legislation or court rulings, according to the Marijuana Policy Project.
That leaves 19 states where people may have to choose between this treatment option and a job. One of them is California, which was the first state to legalize medical marijuana, in 1996, but doesn't have explicit workplace protections. The state Supreme Court ruled in 2008 that an employer could reject a job candidate with a positive cannabis test -- even if they had a prescription. Bills seeking to override that decision have been tossed around without success.
Even where employment protections exist, they have limitations. Arkansas law, for example, says an employer can't discriminate based on a person’s past or present status as a marijuana patient. But companies can still ban employees from taking it at work. In Oklahoma, employers can't penalize employees or applicants for a positive drug test -- unless failing to penalize someone would cause the employer to “imminently lose a monetary- or licensing-related benefit under federal law or regulation.”...
Despite the widespread legalization of medical cannabis, there are a number of reasons employers pause when it comes to having people who use it on their staff. Some aren't fully aware of their state's protections, and others might fear losing out on federal funding. “A lot of people are concerned about whether marijuana users will be less productive [at] work or if there will be more workplace accidents,” says Karen O’Keefe, state policies director for the Marijuana Policy Project.
But unlike many other drugs, THC, the active ingredient in marijuana, can be detected for 30 days or longer after use, so workplace drug tests don't necessarily portray a person’s current level of impairment. As medical marijuana becomes less taboo, more employers will likely change their drug policies. Already, fewer employers -- particularly those facing staff shortages -- are requesting preemployment tests for marijuana.
Thursday, April 25, 2019
The title of this post is the headline of this notable and lengthy new New York Times article. Here are excerpts:
Although cannabis remains illegal on the federal level, 33 states now allow its sale at least for medical purposes. Ten of them, including California, have legalized recreational use. And as new markets open and capital continues to flood in, the cannabis industry has become, by some measures, one of the country’s fastest-growing job sectors.
The jobs range from hourly work at farms and stores to executive positions. They also span the country. Columbia Care, a medical cannabis company that is based in New York and has 500 employees, has indoor farms and manufacturing plants in Massachusetts, Delaware, Florida, Illinois, Arizona and the District of Columbia.
It’s hard to know exactly how many jobs there are in the legal cannabis business. The United States Labor Department collects data from cannabis farms and retailers, but does not provide figures for the industry. Still, listings for cannabis-related positions have rocketed to the top echelon of the fastest-growing-job categories on sites like Indeed and ZipRecruiter.
Julia Pollak, a labor economist at ZipRecruiter, said the company’s data put the number of cannabis jobs nationwide at 200,000 to 300,000. Most of those jobs are on the lower end of the pay scale, consisting of rote agricultural work like plant trimming ($10 to $15 an hour) and “budtenders” (about $25,000 a year), who help customers decide what kind of cannabis they want and then weigh and bag it.
But as the industry expands, there has also been a strong demand for better-paid positions like chemists, software engineers, and nurses who consult with patients about using cannabis for anxiety and other medical conditions. “The early signs are that this will grow rapidly,” Ms. Pollak said....
The pioneers who brought the industry out of the shadows are being joined by professional managers and executives — “talent,” in corporate speak — who have had careers in other industries. For upper-level managers and executives, companies say they prefer candidates with a background in highly regulated industries like alcohol or pharmaceuticals....
After a decade in pharmaceutical marketing at companies including Gilead Sciences, Julie Raque recently became the vice president for marketing at Cannabistry Labs, a cannabis research and testing company in Chicago. She was intrigued by the industry and eager to join a start-up, but had to take a pay cut in exchange for company stock — and to accept that her decision might be a one-way door. “I highly doubt companies would want to hire me back,” she said. “I knew I was about to do something big, and since then I’ve not looked back, because I’m having so much fun.”
A few prior related posts:
- Leafy report finds"more than 211,000 cannabis jobs across the United States"
- Will 2019 really be the "year of weed"? How can we tell?
- "Cannabis Employees Now Outnumber Pilots and Librarians in America"
- "The Economic Effects of the Marijuana Industry in Colorado"
- "Economic Impact of the Passage of the Medical Marijuana Law in the State of Florida"
April 25, 2019 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)
Friday, April 12, 2019
The title of this post is the title of this paper just posted to SSRN and authored by Shelby Slaven, who is a student at The Ohio State University Moritz College of Law. Here is the paper's abstract:
While the idea of legalizing cannabis for adult use is gaining on acceptance among the public, the past and current policies on both, the state and federal level, have resulted in dearth of research on the efficacy of cannabis for therapeutic purposes as well as possible societal and health consequences of recreational use. Institutes of higher education are best positioned not only to reform research on the substance, but to train a generation of cultivators, distributors, and healthcare professionals, and while doing so address some of the historical harms perpetrated by the policies of the War on Drugs. Students are seeking out ways to capitalize on a growing market and remedying past discrimination should be a top priority. This paper first provides an overview of cannabis legalization as it stands today, the political efforts that got it here, and those that will move it forward. It then discusses institutes of higher education and the efforts to bring cannabis into the classroom. Lastly, this paper argues that Historically Black Colleges and Universities can provide education, training, and a foot in the door for Black individuals who have suffered harsher criminal penalties in the name of the war on crime.
April 12, 2019 in Business laws and regulatory issues, Employment and labor law issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Friday, March 22, 2019
As mentioned in prior posts, my Marijuana Law, Policy & Reform seminar is now deep into the student presentation unit, and we will have four presentations each week in coming weeks and thus lots of great student-assembled content here on the blog The first presentation for next week will focus on updating employment policies, and here is how my student has summarized his topic, along with the background readings he has provided for classmates (and the rest of us):
As more states legalize marijuana for medical and recreational uses, the business community must acknowledge that larger portions of the American public will consume marijuana. Consequently, the labor market now includes more marijuana users than ever before. The zero-tolerance drug policies that employers use to discourage marijuana consumption are driving labor shortages throughout corporate America. To remain competitive and recruit the next generation of talented employees, Fortune 500 companies should revise their drug policies to permit off-duty marijuana use. Efforts to reform workplace drug policies should consider the labyrinth of federal and state laws that require certain employers to test for marijuana. Provided that corporate employers include exceptions for these rules, workplace drug policies will remain legally compliant.
Lisa Nagele-Piazza, How Do Recreational Marijuana Laws Affect the Workplace?, Society for Human Resource Management (Jan. 17, 2018).
Roy Maurer, Employers in This State Can’t Reject Job Applicants ‘Solely’ for Smoking Pot, Society For Human Resource Management (February 16, 2018) .
Judy Stone, The Sham Of Drug Testing For Benefits: Walker, Scott And Political Pandering, Forbes (Feb. 17, 2015).
Nelson D. Schwartz, Economy Needs Workers, but Drug Tests Take a Toll, N.Y. Times (July 2017).
Federal Laws and Regulations, Substance Abuse and Mental Health Services Administration (Nov. 2, 2015).
Sunday, March 17, 2019
As mentioned in a prior post, the students in my Marijuana Law, Policy & Reform seminar are back from break and back at presentations on their research topics. The second presentation this week will focus on "on Ohio’s employment law future and will draw inferences from other states’ statutory language and case law to predict how discrimination cases may (or may not) proceed." Here is how my student has summarized her topic, along with the background readings she has provided for classmates (and the rest of us):
In Ohio, the law gives employers discretion to accommodate employees' medical marijuana use or not, and has a provision specifically designed to thwart disability claims from proceeding. It is possible that a court could find that failure to accommodate is not per-se unreasonable, and an Ohio court decision could follow the lead of a in Barbuto and Connecticut court in Noffsinger. This interpretation would require that an employee argue that the Americans with Disabilities Act's carve-out for medications should be used to interpret Ohio's Revised Code § 4112.02, creating a carve-out for legal (under state law) marijuana used as medication under the supervision of a medical professional. Due to fairly clear legislative intent to prevent employment discrimination actions for medical marijuana under Revised Code § 3796.28(5), the more likely path in Ohio is probably the way of Colorado in Coats which allowed an employer to fire a disabled employee for failing a baseline Cannabinoid presence test, regardless of his medical status, as violating employer policy.
Here are some additional background resources:
A Survey of Medical Marijuana Laws Impacting the Workplace by Joseph H. Yastrow
Employers and workers grapple with laws allowing marijuana use by G. M. Filisko
Here are resources more specific to my topic:
Ohio’s medical marijuana employment provision: Revised Code § 3796.28(5)
Ohio's disability anti-discrimination regulation under Code § 4112: OAC § 4112-5-08 Discrimination in the employment of the disabled
Friday, March 15, 2019
The question in the title of this post is the headline of this notable recent ESPN article that a terrific student of mine made sure I did not miss. Here is how the lengthy piece gets started and an excerpt reviewing the NHL's notable approach to positive drug tests:
Player X is in the NHL. After home games, he has a routine . Typically, he'll meet a few teammates at a local restaurant for a late dinner. He likes to order steak after games -- medium rare, with a side salad and mashed potatoes. Then he'll go home.
Player X sometimes has a hard time unwinding; it was a day of unbounded stimulation. He woke up and arrived at the rink for a morning skate and meetings, went home to nap, returned to the arena for warm-ups (bright lights and eardrum-blasting music), then exerted his body for 20-something sub-one-minute shifts during which he shoves, sprints, reaches, shoots, gets hit and sometimes bleeds on the ice. By the time he gets home at night, he needs something to ease the process of getting to bed. So he'll often reach for his weed pen and take a few hits. "Just to relax," he says. "Honestly, it's the easiest and most natural way for me to fall asleep and be ready for the next day."
Because Player X is on a Western Conference team based in a state in which there are broad laws legalizing marijuana, he knows he's not doing anything wrong. Actually, he's doing what he estimates thousands of others who live in his city do every night as well.
And because he plays in the NHL -- and not, say, the NFL, NBA or MLB -- he knows he won't be punished.
Society's views on marijuana are evolving -- fast. On Oct. 16, Canada became the largest country in the world to legalize recreational marijuana. Coupled with results from the midterm elections in the United States, this is the landscape: Of the 31 teams in the NHL, 28 play in states where players have access to legal marijuana, whether it is for medicinal or recreational purposes. That's the highest percentage (90.3) of any of the major four North American pro leagues, but hardly an anomaly.
This might surprise you: Of the 123 teams across MLB, the NBA, NHL and NFL, 45 play in states or provinces where recreational marijuana is legal (36.6 percent). Another 56 play in jurisdictions where medical marijuana is legal (45.5 percent). That's a whopping 82 percent of teams (101 of 123) that are playing in areas where their employees can legally purchase either medicinal or recreational marijuana....
Dr. Dave Lewis and Dr. Brian Shaw are the physicians who run the NHL and NHLPA's joint Substance Abuse and Behavioral Health (SABH) Program. If they determine Player X's test features "abnormally high levels" of THC, they flag it. The veil of anonymity is then lifted, and the two doctors will contact Player X. They can recommend he enters the SABH, in which they'll develop an individualized treatment plan for him. Neither the NHL nor NHLPA needs to know that he's in the program.
The league won't punish Player X at all for his test. If he chooses to enter the SABH, Dr. Lewis and Dr. Shaw have the power to levy fines, suspensions or other penalties if conditions are breached. However, the player is not required to enter the program if he doesn't want to.
"The thing that we're really looking for is if there's a guy that has an issue or a problem and he needs help -- that's what we're trying to capture in that program," says longtime NHL defenseman Mathieu Schneider, now a senior executive at the NHLPA . "I do think it has worked very well. We have a tremendous amount of faith in the doctors that run the program. Confidentiality in that program is of the utmost importance."
I have long thought it notable (and not a mere coincidence) that the "whitest" major sports league, the NHL, has the most tolerant approach to marijuana and other drugs. This ESPN article does not focus on racial issues, but rather is focused on the possibility that other major sports leagues could be attracted to the treatment-oriented marijuana policies in the NHL. I certainly like that idea, but I am not sure why this kind of public-health approach to marijuana use ought to only benefit elite athletes. We have used punitive models for dealing with drug use and abuse for so long, the idea that a person would not get punished by his employer for a position drug test seem surprising when it should be the norm.
Wednesday, January 9, 2019
The title of this post is the title of this new Civilized piece with an interesting factoid about employment in the marijuana industry. Here are the particulars (with links from the original to a notable infographic):
If there's any marker that the cannabis industry isn't slowing down, it's just how many people are now working in it.
In 2018 there were somewhere between 125,000 and 160,000 working in the legal cannabis industry, according to an infographic released by Cali Extractions using data from Statista and Marijuana Business Daily. That's no small jump up from just last year where there were only 90,000–110,000 cannabis industry workers.
That means there are more people working in state-legalized cannabis industries than there are pilots or librarians in America. And next year cannabis jobs look like they'll overtake the number of kindergarten teachers and bus drivers.
"Since 2016, revenue from cannabis has almost doubled—not many industries can show that kind of growth, even in the salad days," reads the a statement released with the infographic.
Thursday, December 20, 2018
Democrat wing of congressional Joint Economic Committee releases report on "The National Cannabis Economy"
This week the Democrats of the US Congress' Joint Economic Committee released this interesting short report titled simply "The National Cannabis Economy." Here is how it gets started and its final passages:
The National Cannabis Economy
Cannabis, or marijuana, is the most commonly used illicit drug in the United States. Though illegal at the federal level, states are taking action to legalize cannabis — from recreational use in states like Colorado and Maine to medical use in New Mexico and Florida. A record 66 percent of Americans now support legalizing cannabis, a dramatic increase from just 12 percent in 1969.
The legalization of cannabis has significant implications for state economies, as well as the national economy. The industry totaled more than $8 billion in sales in 2017, with sales estimated to reach $11 billion this year and $23 billion by 2022. There were more than 9,000 active licenses for cannabis businesses in the U.S. in 2017, with the industry employing more than 120,000 people.
As more states move to legalize cannabis, these numbers will only continue to rise, potentially providing a new stream of revenue and jobs to local economies. But to realize these benefits, policymakers must address conflicts between state and federal regulations that impede the growth of the cannabis economy....
There are a variety of proposals to fix the conflicts between state and federal cannabis laws. Of these proposals, the bipartisan STATES Act has drawn support from President Trump and the cannabis industry. The STATES Act would amend the Controlled Substances Act so that its provisions no longer apply to individuals acting in accordance with state laws. Importantly, the bill would also clarify that financial transactions with state-legal cannabis businesses are not drug-trafficking, creating a solution for financial institutions and the cannabis industry. Several states could be next to legalize cannabis. A bill to legalize cannabis is progressing through the New Jersey legislature, while New York lawmakers are preparing to consider similar legislation this year. Similarly, newly elected governors in New Mexico, Minnesota, Illinois, and Connecticut have all voiced support for legal cannabis, positioning their states to consider the issue.
The growth of the cannabis economy presents opportunities for greater job creation, more tax revenue, and better patient care. But current conflicts between state and federal law threaten to impede social and economic growth. Going forward, lawmakers and regulators should prioritize solutions that promote greater research into the health effects of cannabis and reduce regulations that restrict the industry’s ability to conduct business.
December 20, 2018 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Employment and labor law issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)
Thursday, June 14, 2018
Maine Supreme Court rules federal prohibition preempts effort to make employer subsidize an employee’s medical marijuana
As reported in this AP article, "Maine employers don’t have to pay for medical marijuana under the state workers’ compensation system because federal law supersedes state law, the state supreme court ruled Thursday." Here is more on this state court ruling and some national context:
The court concluded in a 5-2 decision that federal law takes precedence in a conflict between the federal Controlled Substances Act and the state medical marijuana law. Existing case law demonstrates that an individual’s right to use medical marijuana under state law “cannot be converted into a sword that would require another party” to engage in conduct that violates current federal law, Justice Jeffrey Hjelm wrote for the majority.
The legal case focused on whether a paper mill must pay for medical marijuana prescribed for a worker who was disabled after being hurt on the job in 1989. Madawaska resident Gaetan Bourgoin won an appeal to the Workers’ Compensation Board after arguing that marijuana is cheaper and safer than narcotics. But the Twin Rivers Paper Co. argued that it shouldn’t be required to cover the cost of medical marijuana and that doing so put it in violation of federal law.
The Supreme Judicial Court concluded that the Maine Legislature’s exemption of medical marijuana patients from prosecution under state law “does not have the power to change or restrict the application of federal law that positively conflicts with state law.”
Two dissenting justices wrote that the compelling story of how the injured worker was weaned from opioids by use of medical marijuana justified requiring the reimbursement. “The result of the court’s opinion today is to deprive (the worker) of reimbursement for medication that has finally given him relief from his chronic pain, and to perhaps force him to return to the use of opioids and other drugs...,” Justice Joseph Jabar wrote....
At least five states — Connecticut, Maine, Minnesota, New Jersey and New Mexico — have found medical marijuana treatment is reimbursable under their workers’ compensation laws, according to the National Council for Compensation Insurance. Florida and North Dakota, meanwhile, passed laws last year excluding medical marijuana treatment from workers’ compensation reimbursement.
The full 50-page Maine Supreme Judicial Court ruling is available at this link. Here is how the majority opinion gets started:
After sustaining a work-related injury, Gaetan H. Bourgoin was issued a certification to use medical marijuana as a result of chronic back pain. He successfully petitioned the Workers’ Compensation Board for an order requiring his former employer, Twin Rivers Paper Company, LLC, to pay for the medical marijuana. On this appeal from the decision of the Appellate Division affirming that award, we are called upon for the first time to consider the relationship between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA). We conclude that in the narrow circumstances of this case — where an employer is subject to an order that would require it to subsidize an employee’s acquisition of medical marijuana — there is a positive conflict between federal and state law, and as a result, the CSA preempts the MMUMA as applied here. See 21 U.S.C.S. § 903 (LEXIS through Pub. L. No. 115-181). We therefore vacate the decision of the Appellate Division.
Monday, May 7, 2018
The question in the title of this post is the headline of this recent Boston Globe article. (At the risk of getting redundant, I will again note ow this press piece is related in theme to my most recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices.") Here are excerpts from the Globe piece:
Last month, Massachusetts rolled out the country’s first statewide marijuana industry “equity” program, giving preferential treatment to people who are typically marginalized by the business world.
One key to the effort: giving a head start in the rush for cannabis licenses to companies that are led by or employ minorities, to people with past marijuana convictions, or to residents of low-income neighborhoods with high arrest rates for drug crimes. All other companies that grow, process, or sell pot, meanwhile, are required to help those communities, and are limited in the size of their operations. The Massachusetts Cannabis Control Commission will also launch a training program for inexperienced pot entrepreneurs.
The provisions spring from a simple premise: People of color were disproportionately prosecuted and jailed amid the nation’s “war on drugs,” even though whites had similar rates for using or selling marijuana. It would be unfair, proponents argued, to allow the windfall of a now-legal cannabis industry to flow only to the already privileged, while those who suffered the most under pot prohibition remain frozen out. “We’re going to use this moment to try to rebalance the scales — or, at the very least, to stop creating new unbalanced scales,’’ said state Senator Sonia Chang-Diaz, who helped to write the so-called equity provisions into state law.
While it may seem radical to give previously incarcerated people the right to sell a product that was illegal until recently, the equity provisions so far haven’t been particularly controversial. Even Walpole Police Chief John Carmichael, a fierce critic of legal marijuana, is on board. “It’s going to open the door for people who just wouldn’t otherwise have the ability and financial background to break in,” Carmichael said. “We have to give them a chance.”
As the commission developed its regulations this year, county prosecutors asked the agency to bar people convicted of trafficking certain still-illegal drugs such as heroin or fentanyl from even working at a cannabis company. “This is not an area for permissiveness,” the Massachusetts District Attorneys Association warned in a letter. The cannabis commission partially acquiesced, restricting such people to administrative positions that don’t involving handling marijuana products.
For owners of cannabis businesses, the bar is higher than for their employees. People convicted of serious crimes, including nonmarijuana drug felonies, firearm violations, and sex offenses, cannot own licensed pot companies. However, businesses can hire people with records for possessing opioids, for example, and receive preferential treatment if they employ enough people with criminal records. People convicted of large-scale marijuana trafficking may qualify under the rules, though some might have related convictions that would automatically disqualify them anyway. The commission also has discretion to reject any applicant.
Marijuana equity programs elsewhere operate only on the local level, and have a limited track record. Oakland, Calif., for example, this year adopted a policy that reserves more than half of the city’s licenses for equity applicants, and most of the rest for large companies that agree to host and mentor them. The system has indeed helped people of color break into the business — but it’s also drawn sharp backlash from smaller companies that do not qualify.
Massachusetts has taken a less restrictive approach. The primary initiative underway provides expedited review to applications from companies that meet certain criteria — those owned by people from places with high rates of poverty and drug arrests, for example, or that employ mostly people with drug-related convictions. It’s an important benefit, as many Massachusetts communities limit the number and locations of pot businesses, giving a big advantage to the first stores.
Later this year, the commission will work with community groups to develop a crash course in business planning and fund-raising for entrepreneurs who were arrested or live in so-called communities of disproportionate impact. Those entrepreneurs will also be exempt from many state fees and will be allowed to open pot-delivery services and lounges ahead of other companies if the commission decides to issue those licenses....
Entrepreneurs who do not have drug convictions or arrests can still qualify if they show their business will benefit poorer communities with high arrest rates. For example, Dishon Laing dreams of opening an alternative health center in his native Dorchester that would offer yoga, vegan food, and cannabis. He, too, wants to hire people with criminal records, and also plans to run drug education programs for teenagers. “Everything we do is connected to giving back,” said Laing, a city public health worker. “I know my partners and I will face stigma based on being people of color and the industry we’re in, but we want to show that we’re actually improving our communities.”
Another requirement is intended to recruit marijuana companies that don’t qualify for the equity program to the cause: All applicants must show how their businesses will benefit communities hurt by the drug war. For example, Sira Naturals, a larger medical marijuana operator that’s seeking recreational licenses, plans to host an incubator for equity applicants at its growing facility in Milford. Licensed marijuana businesses must also write and adhere to a diversity plan that promotes gender equity and the employment of veterans, LGBT people, and people with disabilities.
The commission also offers incentives: Companies that provide money and mentoring to entrepreneurs from “areas of disproportionate impact” can get the cannabis equivalent of a Good Housekeeping seal of approval: a “social justice leader” label affixed to their product packaging. State officials also have moved to protect smaller equity businesses by banning larger companies from holding more than three licenses of any type and capping each company’s cultivation area at 100,000 square feet.
All these advantages, however, may not help applicants overcome the biggest hurdle: winning approval from local officials for the location and opening of their businesses. Somerville and other municipalities are considering local versions of the equity program, but none have been adopted yet. Advocates are worried established companies — such as existing medical dispensaries, which are nearly all white-owned — can outbid smaller players by offering communities generous financial packages.
“Cities and towns need to step up, or in a few years we’ll see we had this opportunity to put diversity into action and we failed,” said Ross Bradshaw, who hopes to open a pot business in a Worcester neighborhood designated as an area of disproportionate impact. “There are going to be municipalities that only allow three licenses, and two are going to medical marijuana companies. That’s less opportunity for people of color.”
Cannabis commissioner Shaleen Title, who championed the equity initiatives, acknowledged they are hardly a cure-all. But Title is heartened by the early numbers: 68 applicants have cleared a first hurdle in the process for licensing, and more than 100 more under review. Those people would have their applications reviewed ahead of others. “We’ll never be able to repair the damage caused by drug prohibition, but these programs at least begin to help provide a fair shot,” Title said. “Think about having a conviction that was based on unfair enforcement, and how that holds you back in so many different ways — we want to make that right.”
May 7, 2018 in Business laws and regulatory issues, Criminal justice developments and reforms, Employment and labor law issues, History of Marijuana Laws in the United States, Initiative reforms in states, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Thursday, April 19, 2018
The title of this post is the title of this thorough and effective review of myriad economic impacts of the marijuana industry in the first state to have a functioning recreational marijuana market. This piece was authored by the Federal Reserve Back of Kansas City, and I recommend the piece in full to anyone and everyone interested in certain economic realities flowing from legalization and commercialization of recreational marijuana. Here are some snippets from the start and heart of the piece:
In 2012, Colorado voters passed Amendment 64, making Colorado one of the first states to legalize recreational marijuana. Since then, the legalization trend has continued, and today, medical marijuana is legal in 29 states and Washington, D.C., and recreational marijuana is legal in eight states and Washington, D.C. So far in 2018, Vermont’s lawmakers have legalized marijuana starting July 1, and at least 11 other states are considering recreational or medical marijuana legalization. The marijuana industry has had many effects on the state of Colorado since it was legalized. This issue of the Rocky Mountain Economist focuses on the economic impacts of the marijuana industry in Colorado, the first state to open recreational marijuana stores....
Marijuana Sales in Colorado
To put the magnitude of marijuana sales in perspective, personal consumption expenditures on all goods and services totaled $236.3 billion in 2016 in Colorado. Marijuana sales were $1.3 billion in 2016, or 0.55 percent of all personal consumer expenditures. By comparison, spending on food and beverages purchased for off-site consumption made up 7.2 percent of personal consumption expenditures in Colorado....
To get a sense of the magnitude of the marijuana industry, we can compare the total number of marijuana-related business licenses in the state to the number of new entity business filings for all industries in the state. Between the first quarter of 2014 and the fourth quarter of 2017, there were about 431,997 new entity business filings in Colorado. By comparison, slightly more than 3,000 marijuana-related business licenses were active at the end of 2017. If all of these marijuana-related businesses started during the first quarter of 2014 through the end of 2017, then they would represent about 0.7 percent of total new business filings in the state since 2014. The actual percentage likely is lower than 0.7 percent because some marijuana-related businesses existed in Colorado prior to 2014, particularly those serving the medical side of the industry....
Employment in the Marijuana Industry
As of March 2018, there were more than 38,000 issued individual licenses in the marijuana industry, including 1,637 business owners. Of course, not everyone with a license is working in the industry, and the Marijuana Policy Group estimates that one active license equates to 0.467 full-time equivalent positions. Using this estimate, the marijuana industry currently employs about 17,821 full-time equivalent staff, a 17.7 percent increase in employment over the previous year....
Taxation of the Marijuana Industry
In 2017, the state of Colorado collected more than $247 million from the marijuana industry, including state sales taxes on recreational and medical, special sales taxes on recreational, excise taxes on recreational and application and licenses fees. Tax collections since 2014 have increased significantly, though at a slower pace over the past year. Between 2014 and 2015, total collections increased 93 percent. By contrast, collections increased about 28 percent between 2016 and 2017. To put the magnitude of marijuana tax collections in perspective, they equate to about 2.3 percent of Colorado’s 2017 general fund revenue. Although this calculation is useful for perspective, most marijuana revenue does not go into the state general fund....
Potential Costs of Marijuana Legalization
The data on legalization’s impact on public safety is limited, and therefore, the full effects of legalization on public safety are uncertain. Between 2012 and 2014, the number of marijuana arrests fell 46 percent, primarily due to a decline in marijuana possession arrests. In Denver, the number of crimes reported to the Denver Police Department that were determined to have a clear connection to marijuana increased from 234 in 2013 to 276 in 2014, but then fell to 183 in 2017. Of the crimes reported with a connection to marijuana in 2017, 54 percent were burglaries and 74 percent were industry-related.xxviii Fifteen percent of DUI summons issued by the Colorado State Patrol in 2015 were for marijuana or marijuana in combination with alcohol or other drugs although the number of these types of DUIs fell 1 percent between 2014 and 2015. Traffic fatalities with THC-only or THC-in-combination positive drivers rose from 55 in 2013 to 79 in 2014....
As the first state to open recreational marijuana retail stores, Colorado provides a case study to examine the potential economic effects from legalization. Direct employment in the marijuana sector has risen robustly since the passage of Amendment 64, contributing about 5.4 percent of all employment growth in Colorado since January 2014. Despite these solid gains, employment in the sector makes up just 0.7 percent of total employment in the state. Similar to employment, tax collections from marijuana have also increased sharply in recent years, and are equal to about 2 percent of general fund revenues in the state. Although legalization has contributed to employment growth and tax revenues in the state, it is important to weigh those benefits against the potential costs to public safety and health outcomes.
April 19, 2018 in Business laws and regulatory issues, Employment and labor law issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Taxation information and issues | Permalink | Comments (0)
Sunday, December 3, 2017
An important and enduring issue, and one being covered by a student presentation this week in my Marijuana Law, Policy & Reform seminar, concerns labor and employment law in the era of state marijuana reforms. Here are an array of materials assembled by this student as background on this topic:
What types of drug tests do employers use? How are they different?:
Overview of federal employment drug testing:
Case Law about employment discrimination and medical marijuana:
Ohio's law and challenges: not much protection to employees, while employers who struggle to fill positions due to high drug test failure rates:
Sunday, October 29, 2017
A growth in lawsuits might well be seen as a sure sign that the marijuana industry is reaching a new level of development. For that reason, supporters of marijuana reform might see these two detailed articles from Marijuana Business Daily about legal issues facing marijuana companies as a positive sign. And students in my marijuana reform seminar might see these articles as a preview of what legal practice in this field can involve:
October 29, 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)
Thursday, October 5, 2017
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)