Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, May 20, 2019

"Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"

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:

May 20, 2019 in Business laws and regulatory issues, Employment and labor law issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, May 17, 2019

Noting diverse employment law realities for medical marijuana users in diverse states

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.

May 17, 2019 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, April 25, 2019

"Cannabis, Marijuana, Weed, Pot? Just Call It a Job Machine"

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:

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 Canna(business) of Higher Education"

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

Exploring how employers should reform drug policies in an era of marijuana reform

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).

March 22, 2019 in Assembled readings on specific topics, Business laws and regulatory issues, Employment and labor law issues | Permalink | Comments (0)

Sunday, March 17, 2019

Assessing employment law realities in Ohio’s medical marijuana system

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)

Links directly to leading cases: Noffsinger from CT and Barbuto from MA and Coats from CO

Ohio's disability anti-discrimination regulation under Code § 4112: OAC § 4112-5-08 Discrimination in the employment of the disabled

March 17, 2019 in Assembled readings on specific topics, Employment and labor law issues | Permalink | Comments (0)

Friday, March 15, 2019

"Is the NHL the future of marijuana in pro sports?"

Download (11)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.  

March 15, 2019 in Employment and labor law issues, Recreational Marijuana Commentary and Debate, Sports, Who decides | Permalink | Comments (0)

Wednesday, January 9, 2019

"Cannabis Employees Now Outnumber Pilots and Librarians in America"

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.

January 9, 2019 in Employment and labor law issues, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Thursday, December 20, 2018

Democrat wing of congressional Joint Economic Committee releases report on "The National Cannabis Economy"

Download (30)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....

Going Forward

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.

Conclusion

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

Mmm[1]_0As 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.

June 14, 2018 in Court Rulings, Employment and labor law issues, Medical Marijuana State Laws and Reforms, State court rulings, Who decides | Permalink | Comments (1)

Monday, May 7, 2018

"Can the Mass. marijuana industry help heal communities devastated by the War on Drugs?"

Massachusetts-marijuanaThe 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 Economic Effects of the Marijuana Industry in Colorado"

Images (9)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....

Conclusion

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

Looking into labor employment law issues in an era of marijuana reform

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:

The Essentials:

ACLU, "State-by-State Workplace Drug Testing"

Joseph Yastrow, A Survey of Medical Marijuana Laws Impacting the Workplace

What types of drug tests do employers use? How are they different?:

"Drug Tests - Methods of Detecting Cannabis Use"

Overview of federal employment drug testing:

Executive Order 12564: Drug-free Federal workplace

Omnibus Transportation Employee testing Act of 1991

 Case Law about employment discrimination and medical marijuana:

James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012) 

Coats v. Dish Network, LLC, 350 P.3d 849 (Colorado 2015)

Noffsinger v. SSC Niantic Operating Company LLC, --- F.Supp.3d ----, 2017 WL 3401260 (D. Conn. August 8, 2017). 

Ohio's law and challenges: not much protection to employees, while employers who struggle to fill positions due to high drug test failure rates:

Ohio Revised Code Section 3796.28: Rights of employer

"Failed drug tests keep Ohio jobs unfilled"

"Opioid Crisis Looms Over Job Market, Worrying Employers And Economists"

"Economy Needs Workers, but Drug Tests Take a Toll"

"National Unemployment Rate at 4.1 Percent through October 2017"

December 3, 2017 in Business laws and regulatory issues, Employment and labor law issues | Permalink | Comments (0)

Sunday, October 29, 2017

Looking at some of the (mature?) legal issues now arising in marijuana industry

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

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

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

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

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

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

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

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

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

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

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

Monday, October 2, 2017

"Government jobs sprout as California legal pot looms"

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, August 27, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, August 14, 2017

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

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

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

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

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

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

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

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

Tuesday, July 18, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 27, 2017

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

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

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

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

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

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

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

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

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