Thursday, December 7, 2023
The title of this post is the title of this new article authored by William Garriott and Jose Garcia-Fuerte now available via SSRN. Here is its abstract:
Today, many states have adopted a commercial-based approach to cannabis legalization which reflects the market for alcohol to govern the production, distribution, and consumption of the cannabis plant and its derivatives. As a result, legalization has prioritized economic benefits and structures over justice concerns that would dismantle the old infrastructure of prohibition. This continues to shape the way legalization is unfolding across the United States.
One impact of this market-based approach is the push for social equity within the cannabis industry. Though poor people and people of color have disproportionately suffered under prohibition, it is those least likely to have been targeted — wealthy and/or white people — that have disproportionately benefited from legalization.
To change this dynamic, social equity advocated have argued for a suite of policies that we term “the social equity paradigm.” These policies are multifaceted and take various forms, but focus on three priorities: (1) increasing access to the industry, (2) addressing criminal records, and (3) re-investing cannabis tax revenues into disproportionately impacted communities. All three priorities reflect the shortcomings of the market-based legalization model. They also reflect the principle of equity, which in this context simply means that those disproportionately harmed by prohibition should receive disproportionate benefit under legalization.
This article surveys the social equity paradigm across the country, and discusses the many legal, political, and social challenges confronting the paradigm that may require a shift in the approach to social equity. The article provides recommendations for how the principles of the social equity paradigm can be sustained while avoiding the challenges that seek to undermine it.
December 7, 2023 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Employment and labor law issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Tuesday, January 3, 2023
As I have recently mentioned, after a very busy Fall semester, I am catching up on the posting of some recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. As I seek to catch up in the days ahead, as I continue to relish the chance to highlight great work by OSU law students and recent graduates. The title of this post is the title of this paper authored by Jenna Pletcher who is in the midst of her 3L year at The Ohio State University Moritz College of Law. Here is its abstract of her paper:
America’s legal cannabis market is growing exponentially and more states are beginning to legalize cannabis products. Currently, the legal cannabis industry supports 428,059 workers nationally, and it is predicted that a mature cannabis market would support 1.5 million to 1.75 million workers. However, it can be unclear what legal protections are offered to these workers under a federal prohibition regime.
The basic right of workers to form a union is protected by the National Labor Relations Act (“NLRA”). However, the NLRA does not protect agricultural workers, and it is not clear which positions in the cannabis industry are considered “agricultural.” In addition, it is unclear whether the National Labor Relations Board will consistently exert jurisdiction over retail workers in a federally prohibited recreational marijuana industry. This paper will evaluate the applicability of the NLRA to the cannabis industry, the policy concerns surrounding the use of labor peace agreements to fill in gaps left by federal labor laws, and what widespread unionization could mean for a quickly growing sector of the economy.
Monday, August 15, 2022
Nevada Supreme Court rejects claim that state's "lawful use" statute protects casino worker from discharge for off-duty marijuana use
Nearly a decade ago, a fascinating employment law case began working its way through the Colorado state court system following the termination of Brandon Coats by the Dish Network. Coats, who used medical marijuana following a car accident that left him a quadriplegic, claimed that Colorado state law protected him from discharge simply for having tested positive for marijuana since he used the drug only off-duty and lawfully under state law. The case involved sympathetic facts early in the modern marijuana reform era, and the case generated lots of amicus briefs and media attention when it reached the state's Supreme Court. In the end, the Colorado Supreme Court ruled in Coats v. Dish Network, 350 P.3d 849 (Colo. 2015) that "an activity such as medical marijuana use that is unlawful under federal law is not a "lawful" activity under" the applicable state employment law.
I was reminded of Coats and all the attention it generated when I tripped across this morning a very similar ruling handed down late last week by the Nevada Supreme Court. In Ceballos v. NC Palace, No. 82797 (Nev. Aug 11, 2022) (available here), the underlying facts are a bit different: employee's termination comes after state-lawful recreational marijuana use and the language of the applicable state-law statutory employment protections are a bit different. But the result is the same, as the start and end of the unanimous ruling reveals:
NRS 613.333 creates a private right of action in favor of an employee who is discharged from employment for engaging in "the lawful use in this state of any product outside the premises of the employer during the employee's nonworking hours." The question presented is whether adult recreational marijuana use qualifies for protection under this statute. We agree with the district court that it does not. Although Nevada has decriminalized adult recreational marijuana use, the drug continues to be illegal under federal law. Because federal law criminalizes the possession of marijuana in Nevada, its use is not "lawful ... in this state" and does not support a private right of action under NRS 613.333. Further, because NRS 678D.510(1)(a) authorizes employers to prohibit or restrict recreational marijuana use by employees, an employee discharged after testing positive at work based on recreational marijuana use does not have a common-law tortious discharge claim. We therefore affirm....
The interplay between adult recreational marijuana use and employment law, moreover, is one the Legislature has addressed in NRS 678D.510(1)(a) and, to a lesser extent, in NRS 613.132. Palace Station terminated Ceballos for failing a workplace drug test after engaging in adult recreational marijuana use before his shift. NRS 678D.510(1)(a) specifically authorizes employers to adopt and enforce workplace policies prohibiting or restricting such use. If the Legislature meant to require employers to accommodate employees using recreational marijuana outside the workplace but who thereafter test positive at work, it would have done so. Cf. NRS 678C.850(3) (requiring employers to accommodate the medical needs of employees who use medical marijuana unless certain exceptions exist). It did not. It also did not extend the protections afforded by NRS 613.333 and NRS 613.132 to reach the circumstances giving rise to Ceballos's termination. See supra Section II.A. (discussing the limits the Legislature has set on the protections NRS 613.333 and NRS 613.132 afford). This court declined to allow the employees in Chavez and Sands Regent to pursue common-law tortious discharge claims to redress the discrimination they alleged, because doing so would intrude on the prerogative of the Legislature, which had enacted statutes addressing the same subject matter. See Chavez, 118 Nev. at 294, 43 P.3d at 1026; Sands Regent, 105 Nev. at 440, 777 P.2d at 900. Doing so would be even less appropriate here.
Tuesday, March 22, 2022
The second student presentation this week in my Marijuana Law, Policy & Reform seminar is focused on labor issues in the marijuana industry. Here is how the student describes the topic and provided readings:
On Thursday, February 3, 2022, cannabis workers employed at the Herbology dispensary in Newark voted 8-2 to become the first unionized dispensary in Ohio. The Sunnyside dispensary in Cincinnati followed soon after, voting to unionize on February 9, 2022. Not only is there new interest in unionization in the Ohio cannabis industry, but recreational marijuana legalization is gaining momentum and the national cannabis market is growing rapidly. The legal cannabis industry currently supports 428,059 workers nationally, and it is predicted that a mature cannabis market would support 1.5 million to 1.75 million workers.
The right for workers to unionize is protected by the National Labor Relations Act (“NLRA”). However, the NLRA does not protect agricultural workers. In addition, it is unclear whether the National Labor Relations Board will consistently exert jurisdiction over retail workers in a federally prohibited recreational marijuana industry.
To cover this gray area, six states have laws that encourage or require licensed cannabis businesses to adopt labor peace agreements (“LPA’s”) with their employees, and Ohio is considering implementing a similar requirement. However, the effectiveness of LPA’s is contested, as they may impose too many restrictions upon business owners while not providing the full scope of protection that employees would enjoy under the NLRA. The validity of these LPA’s has not yet been contested in court, but in the interim, they may provide some level of union protection for otherwise unprotected workers. This paper will evaluate the policy concerns surrounding the use of LPA’s in the cannabis industry, as well as what widespread unionization could mean for a quickly growing sector of the economy.
Economic Policy Institute, "The Cannabis Industry Could be a Model of Good Jobs — if Policymakers Strengthen Works’ Right to Unionize"
Leafly, "Jobs Report 2022"
Wednesday, February 23, 2022
The folks at Leafly have this notable new report seeking to address this basic question: "How many jobs are in America’s legal cannabis industry?" Here is part of the answer:
The 2022 Leafly Jobs Report found 428,059 full-time equivalent jobs supported by legal cannabis as of January 2022. In the second year of the Covid-19 pandemic, America’s cannabis industry sold nearly $25 billion in products and created more than 107,000 new jobs — enough to fill the Rose Bowl and then some.
That’s a 33% increase in jobs in a single year. And it marks the fifth year in a row of annual job growth greater than 27%. No other industry in America can match that. Last year, America’s legal cannabis industry created more than 280 new jobs every day. In 2021, someone was hired for a cannabis-supported job about every 2 minutes of the work day....
Those 428,059 jobs include direct cannabis jobs like cultivation and retail sales — what are often called “plant-touching jobs” — as well as indirect ancillary jobs that serve licensed companies or depend on legal cannabis sales. Ancillary jobs include work in accounting, human resources, legal affairs, regulatory compliance, security, maintenance, and construction. Also included are indirect jobs in cannabis media, technology platforms, public relations, lobbying, non-cannabis product suppliers, and industry associations....
America now has three times as many cannabis workers as dentists. Cannabis workers outnumber insurance salespeople. There are more people employed in the cannabis industry than there are hair stylists, barbers, and cosmetologists—combined....
While legal cannabis now supports 428,059 jobs, the total employment potential in a mature US legal cannabis market is approximately 1.5 million to 1.75 million workers. The economic and employment potential for legal cannabis remains quite bright for many years to come.
Friday, September 24, 2021
The question in the title of this post is prompted by this notable lengthy new Washington Post article, fully headlined "Greener pastures: Marijuana jobs are becoming a refuge for retail and restaurant workers: An estimated 321,000 Americans now work in the legal cannabis industry, outnumbering the country’s dentists, paramedics and electrical engineers." Here are excerpts:
After a year on the front lines, Jason Zvokel traded in his 15-year career as a Walgreens pharmacist for a different kind of drugstore: a marijuana dispensary.
Now instead of administering vaccines and filling prescriptions, he’s helping customers make sense of concentrates, tablets and lozenges. His pay is 5 percent lower, he says, but the hours are more manageable. “I am so much happier,” said Zvokel, 46, who’s worked in retail since he was 18. “For the first time in years, I’m not miserable when I come home from work.”
The cannabis industry is riding a pandemic high: Marijuana dispensaries and cultivation facilities — deemed “essential” by many states at the beginning of the coronavirus crisis — became an early refuge for retail and restaurant workers who had been furloughed or laid off. The industry has continued to grow, adding nearly 80,000 jobs in 2020, more than double what it did the year before, according to data from the Leafly Jobs Report, produced in partnership with Whitney Economics.
An estimated 321,000 Americans now work in the industry, a 32 percent increase from last year, the report found, making legal marijuana one of the nation’s fastest-growing sectors. In other words: The United States now has more legal cannabis workers than dentists, paramedics or electrical engineers....
That surge in cannabis hiring has put pressure on traditional employers — particularly in the 18 states and the District where recreational marijuana use is legal — to ease drug testing requirements. Amazon, the nation’s second-largest private employer, said in June that it would stop screening employees for cannabis use and would support federal legislation to legalize marijuana. A number of other employers, including retailers, restaurants and city governments have also dropped such requirements in an effort to attract workers in a labor market where job openings outpace the number of unemployed Americans 10.9 million to 8.4 million.
Workers’ rights groups are pressing for broader unionization in the cannabis industry, calling it a critical time to establish well-paying jobs with proper protections. With the right policies, they say, the industry could become a pipeline to middle-class jobs, much like the manufacturing industry used to be....
Brianna Price recently left a job as a grocery stocker to become a “budtender” — an industry term for a sales associate — at a dispensary. She’s been promoted three times in the year she’s worked there, and now oversees all purchasing and a staff of nine.
“It’s the best job I’ve ever had,” said Price, 31, of Midland, Mich., who worked as a paralegal for eight years before she was laid off early in the pandemic. She took a part-time job at the supermarket chain Aldi, but says it paid so little that she had to move back in with her parents. There were other downsides, too: Her shifts often started at 5 a.m. and sometimes consisted of standing outside, wiping down shopping carts for hours on end....
At the Hempire Collective in Loomis, Mich., where she works, sales have more than doubled in the last year, to roughly $500,000 a month, according to co-owner Mario Porter. He’s expanded his dispensary staff from seven to 12, and expects to hire more this year. Many of his new employees, he said, come from retail jobs that they left during the pandemic.
September 24, 2021 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Tuesday, July 13, 2021
"Higher Me: Marijuana Regulation in the Workforce and the Need for State Legislated Employee Protections"
The title of this post is the title of this new paper recently posted to SSRN and authored by Lily Boehmer, a recent graduate of The Ohio State University Moritz College of Law. (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.) Here is this latest paper's abstract:
Although illegal under federal law, states have increasingly pushed the cannabis legality boundary by legalizing the use of recreational and medicinal marijuana at the state level. In the space between diverging federal and state law, such actions have created a dire situation for employees; employees in states that have legalized the use of marijuana can be fired for arguably legal conduct. Legalization of hemp and cannabidiol (CBD) products increase the risk of termination and litigation for employees and employers. State legalization is not what it purports it to mean.
This paper examines the current legal framework of cannabis regulation, discusses the historical, legal precedent of an employer’s right to terminate an employee in contrast to recent case law providing protection and hope to employees, and analyzes why some employers have stopped marijuana drug testing in response to faulty testing and diminished applicant pools. Ultimately, this paper argues that, absent federal legalization of marijuana, states must protect employees’ off-duty marijuana use through express state legislation. Legalization cannot be fully actualized until employees can use marijuana without employment repercussions.
Tuesday, June 1, 2021
The Memorial Day weekend serves as the unofficial start to summer and today is the official start of June, and so I figured it was a good time to catch up with a bunch of recent notable stories from major outlets that I have not found time to blog about recently. So here goes:
From Pew Research Center, "Religious Americans are less likely to endorse legal marijuana for recreational use"
From the New York Times, "Why the Pandemic Was a Breakout Moment for the Cannabis Industry"
From the New York Times, "Yes, Pot Is Legal. But It’s Also in Short Supply."
From the Wall Street Journal, "Positive Marijuana Tests Are Up Among U.S. Workers"
Also, the always great Marijuana Moment has these two notable recent op-eds:
By Shaleen Title, "Congress Only Has One Chance To Legalize Marijuana The Right Way"
By Matthew Schweich, "The War On Ballot Initiatives Has Marijuana In The Crosshairs"
Wednesday, April 14, 2021
New Jersey Supreme Court unanimously upholds employer obligation to reimburse medical marijuana for workplace injury
The New Jersey Supreme Court yesterday issued a unanimous decision that serves as a reminder of just some of the legal questions that continue arising amid continued marijuana reforms. Specifically, in Vincent Hager v. M&K Construction, No. A-64-19 (N.J. Apr. 13, 2021) (available here), the top NJ court ruled that medical marijuana expenses were fairly covered under the state's workers' compensation act and that the federal Controlled Substances Act did not preclude or preempt the employer's reimbursement obligations. Here is how the extended opinion gets started:
Vincent Hager injured his back in a work-related accident in 2001 while employed by M&K Construction (M&K). For years thereafter, Hager received treatment for chronic pain with opioid medication and surgical procedures to no avail. In 2016, he enrolled in New Jersey’s medical marijuana program both as a means of pain management and to overcome an opioid addiction. Thereafter, a workers’ compensation court found that Hager “exhibit[ed] Permanent Partial Total disability” and ordered M&K to reimburse him for the ongoing costs of his prescription marijuana (the Order). The Appellate Division affirmed.
Before us, M&K contends that New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act (Compassionate Use Act or the Act) is preempted as applied to the Order by the federal Controlled Substances Act (CSA). Compliance with the Order, M&K claims, would subject it to potential federal criminal liability for aiding-and-abetting or conspiracy. M&K also asserts that medical marijuana is not reimbursable as reasonable or necessary treatment under the New Jersey Workers’ Compensation Act (WCA). Finally, M&K argues that it fits within an exception to the Compassionate Use Act and is therefore not required to reimburse Hager for his marijuana costs.
We conclude that M&K does not fit within the Compassionate Use Act’s limited reimbursement exception. We also find that Hager presented sufficient credible evidence to the compensation court to establish that the prescribed medical marijuana represents, as to him, reasonable and necessary treatment under the WCA. Finally, we interpret Congress’s appropriations actions of recent years as suspending application of the CSA to conduct that complies with the Compassionate Use Act. As applied to the Order, we thus find that the Act is not preempted and that M&K does not face a credible threat of federal criminal aiding-and-abetting or conspiracy liability. We therefore affirm the judgment of the Appellate Division.
Friday, March 19, 2021
Marijuana use still proving hurdle to working in White House despite Prez Biden's advocacy for reform
As reported in this Daily Beast piece,"dozens of young White House staffers have been suspended, asked to resign, or placed in a remote work program due to past marijuana use, frustrating staffers who were pleased by initial indications from the Biden administration that recreational use of cannabis would not be immediately disqualifying for would-be personnel, according to three people familiar with the situation." Here is more:
The policy has even affected staffers whose marijuana use was exclusive to one of the 14 states — and the District of Columbia — where cannabis is legal. Sources familiar with the matter also said a number of young staffers were either put on probation or canned because they revealed past marijuana use in an official document they filled out as part of the lengthy background check for a position in the Biden White House.
In some cases, staffers were informally told by transition higher-ups ahead of formally joining the administration that they would likely overlook some past marijuana use, only to be asked later to resign. “There were one-on-one calls with individual affected staffers — rather, ex-staffers,” one former White House staffer affected by the policy told The Daily Beast. “I was asked to resign.”...
In response to this news story, White House press secretary Jen Psaki tweeted out on Friday an NBC News report from February stating that the Biden administration wouldn’t automatically disqualify applicants if they admitted to past marijuana use. Psaki said of the hundreds of people hired in the administration, only five who had started working at the White House are “no longer employed as a result of this policy.”
Psaki didn’t note how many had been disqualified for a White House job before actually starting, nor did she note how many were suspended or relegated to remote work, but she did send an additional statement to The Daily Beast on Friday. “In an effort to ensure that more people have an opportunity to serve the public, we worked in coordination with the security service to ensure that more people have the opportunity to serve than would not have in the past with the same level of recent drug use. While we will not get into individual cases, there were additional factors at play in many instances for the small number of individuals who were terminated,” Psaki said.
The White House said in February it intended — for some candidates — to waive the requirement that all potential appointees in the Executive Office of the President be able to obtain a “top secret” clearance. The rules about past marijuana use and eligibility for the clearance vary, depending on the agency: For the FBI, an applicant can’t have used marijuana in the past three years; at the NSA, it’s only one. The White House, however, largely calls its own shots, and officials at the time told NBC News that as long as past use was “limited” and the candidate wasn’t pursuing a position that required a security clearance, past use may be excused.
Asked about the policy and its effect on the administration’s staffing Thursday night, a White House spokesperson disputed the number of affected staff, but said the Biden administration is “committed to bringing the best people into government — especially the young people whose commitment to public service can deepen in these positions,” and noted that the White House’s approach to past marijuana use is much more flexible than previous administrations....
Some of these dismissals, probations and remote work appointments could have potentially been a result of inconsistencies that came up during the background-check process, where a staffer could have, for example, misstated the last time they used marijuana. The effect of the policy, however, would be the same: The Biden White House would be punishing various staffers for violating thresholds of past cannabis use that would-be staffers didn’t know about....
The Biden administration has attempted to modernize the White House’s personnel policy as it relates to past marijuana use, which has disproportionately affected younger appointees and those from states where marijuana has been decriminalized or legalized. (Marijuana, of course, remains illegal in the eyes of the federal government.) The number of allowable instances of past marijuana use was increased from the Trump and Obama administrations — a reflection of the drug’s widespread use — and the White House approved limited exemptions for candidates whose positions don’t require security clearances. Those employees, like all those at the White House, must commit to not using marijuana while serving in the federal government and must submit to random drug testing.
The president, however, remains the final authority on who can receive a clearance, and the chief executive can overrule agency judgments on eligibility, as President Donald Trump did when he granted his son-in-law Jared Kushner a top-secret clearance over the objections of the intelligence community and his own counsel.
Thursday, February 18, 2021
This short new "Jobs Report 2021" from Leafly provides a rosy account of the job creation contributions of the legalization of marijuana in US states. Here is part of the start of the 16-page report:
How many jobs are there in America’s legal marijuana industry? The 2021 Leafly Jobs Report found 321,000 full-time equivalent (FTE) jobs supported by legal cannabis as of January 2021.
To put that in perspective: In the United States there are more legal cannabis workers than electrical engineers. There are more legal cannabis workers than EMTs and paramedics. There are more than twice as many legal cannabis workers as dentists. And those jobs aren’t limited to Colorado and California. Medical marijuana is now legal in 37 states, while 15 states and Washington, DC, have legalized cannabis for all adults. In Florida, there are now more cannabis workers than plumbers. In Pennsylvania, the state’s famous steel industry employs roughly 36,000 workers — and the state’s not-so-famous legal cannabis industry employs nearly 16,000. In Michigan, there are more cannabis workers than cops.
The annual Leafly Jobs Report, produced in partnership with Whitney Economics, is the nation’s cornerstone cannabis employment study. Federal prohibition prevents the US Department of Labor from counting state-legal marijuana jobs. Since 2017, Leafly’s news and data teams have filled that gap with a yearly analysis of employment in the legal cannabis sector. Whitney Economics, a leading consulting firm that specializes in cannabis economics, has partnered with Leafly on the project since 2019.
In real numbers, the cannabis job growth in 2020 represents a doubling of the previous year’s US job growth. In 2019, the cannabis industry added 33,700 new US jobs for a total of 243,700. Despite a year marked by a global pandemic, spiking unemployment, and economic recession, the legal cannabis industry added 77,300 full-time jobs in the United States. That represents 32% year-over-year job growth, an astonishing figure in the worst year for US economic growth since World War II. Outside the cannabis industry, the US economy shrank by 3.5%, the unemployment rate almost doubled, and nearly 10 million Americans saw their jobs disappear.
Wednesday, October 28, 2020
Massachusetts Supreme Judicial Court rules, based on state law, that workers' comp insurer not required to cover medical marijuana
The Supreme Judicial Court of Massachusetts issued a notable ruling yesterday in Daniel Wright's Case, No. SJC-12873 (Oct. 27 2020) (available here). The full introduction of the opinion from the unanimous court nicely highlights the issue and its resolution:
In the instant case we are asked to determine whether an insurance company may be ordered to reimburse an employee for medical marijuana expenses pursuant to a general provision of the Massachusetts workers' compensation scheme that requires reimbursement of necessary and reasonable medical expenses. The claimant, Daniel Wright, sought compensation for $24,267.86 of medical marijuana expenses to treat chronic pain stemming from two work-related injuries he sustained in 2010 and 2012. His claim was denied by an administrative judge, and the denial was affirmed on appeal by the reviewing board of the Department of Industrial Accidents (department). The reviewing board concluded that marijuana's status as a federally illicit substance preempted any State level authority to order a workers' compensation insurer to pay for Wright's medical marijuana expenses. We likewise conclude that the workers' compensation insurer cannot be required to pay for medical marijuana expenses, but do so based on the medical marijuana act itself.
We recognize that the current legal landscape of medical marijuana law may, at best, be described as a hazy thicket. Marijuana is illegal at the Federal level and has been deemed under Federal law to have no medicinal purposes, but Massachusetts, as well as the majority of States, have legalized medical marijuana and created regulatory schemes for its administration and usage. Complicating and confusing matters further, Congress has placed budgetary restrictions on the ability of the United States Department of Justice to prosecute individuals for marijuana usage in compliance with a State medical marijuana scheme, and the Department of Justice has issued, revised, and revoked memoranda explaining its marijuana enforcement practices and priorities, leaving in place no clear guidance.
The Commonwealth's original medical marijuana act, St. 2012, c. 369 (act or medical marijuana act), was carefully drafted by its sponsors to take into account this most difficult regulatory environment, with provisions specifically designed to avoid possible conflicts with the Federal government. One such provision of the law expressly states that "[n]othing in this law requires any health insurance provider, or any government agency or authority, to reimburse any person for the expenses of the medical use of marijuana." St. 2012, c. 369, § 7 (B). See G. L. c. 94I, § 6 (i). This provision recognizes that when medical marijuana patients seek to recover the costs of such use from third parties, including insurance companies engaged in interstate commerce, the regulatory environment becomes even more problematic. Under the plain language of this provision, those insurers are not required to reimburse medical marijuana expenses for a substance that remains illegal under Federal law.
We conclude that this specific language, and the Federal concerns it seeks to address and avoid, is controlling and not overridden by the general language in the workers' compensation laws requiring workers' compensation insurers to reimburse for reasonable medical expenses. A contrary reading of this specific language, which states that health insurers and government agencies and authorities are not required to reimburse medical marijuana expenses, would have been completely misleading to those who voted on it. It is one thing for a State statute to authorize those who want to use medical marijuana, or provide a patient with a written certification for medical marijuana, to do so and assume the potential risk of Federal prosecution; it is quite another for it to require unwilling third parties to pay for such use and risk such prosecution. The drafters of the medical marijuana law recognized and respected this distinction
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)