Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

Mississippi continues its march (crawl?) towards legalizing medical marijuana.  Ohio legalization advocates collect more signatures.  A new governor in Virginia may mean changes in the state’s cannabis program.  Could hemp help in the fight against COVID?  And finally, marijuana makes its way into a political ad.

mississippi

Regular readers know we’ve been following this situation with interest for some time now – if you need a quick recap, see here.  This week, the Mississippi House passed an amended version of a bill to legalize medical marijuana.  The bill now heads back to the Senate.

ohio

Meanwhile, in Ohio, The Coalition to Regulate Marijuana Like Alcohol turned in over 29,000 additional signatures in favor of an initiated statute legalizing adult-use cannabis.  The group turned in more than 200,000 signatures in December, but recently learned it needed about 13,000 more.  Once these signatures are validated, the statute goes to the legislature.  If lawmakers don’t pass the statute as written, we’re looking at a ballot initiative.  Stay tuned!

virginia

Lots has been written on what the Democrats’ defeat in Virginia means for the party’s chances in November’s elections.  But what does it mean for Virginia’s budding cannabis industry?  If some pre-filed bills are anything to go by, things could look much different than they do right now.  The state’s social equity fund could be eliminated; retail sales might only be allowed in those areas that opt in, and law enforcement might be able to use the odor of marijuana to conduct a search without a warrant.  None of these measures are law yet, but they indicate that the road ahead could have more twists and turns than supporters expected.

covid

A study from Oregon State University indicates that hemp could prevent the virus that causes COVID-19 from entering the human body.  Good news, if true!

and finally

As cannabis becomes legal in more jurisdictions, we expected to see more discussion of it in political ads.  We didn’t expect to see a candidate actually smoking on camera.  Gary Chambers, a candidate for the U.S. Senate from Louisiana, lights up a blunt and lights in to the War on Drugs.

Stay safe and be well everyone – we’ll see you next week!

On January 14, 2022, the Supreme Court of New Hampshire reversed a trial court decision that dismissed a former employee’s complaint alleging his employer failed to consider whether it could reasonably accommodate his use of marijuana for medicinal purposes. New Hampshire joins a growing number of other jurisdictions that have found an employer might have to consider medical marijuana use as a reasonable accommodation.

The former employee alleged that he suffered from Post-Traumatic Stress Disorder and that his physician had recommended that he use marijuana to treat his PTSD. He enrolled in the state’s therapeutic marijuana program and submitted to his employer a written request for an exception from its drug testing policy as a reasonable accommodation for his disability. The former employee advised that he had no intention of using or possessing during work hours or on the company’s premises. The employer denied the request and ultimately terminated him.

The former employee brought an employment discrimination claim alleging a failure to make a reasonable accommodation for his disability. The employer moved to dismiss, arguing that because marijuana is both illegal and criminalized under federal law, the requested accommodation was facially unreasonable. The trial court agreed with the employer and granted its motion. The former employee argued on appeal that the trial court erred in ruling that as a matter of law, an employer cannot be required to accommodate an employee’s use of medical marijuana to treat a disability under state law.

The Supreme Court of New Hampshire agreed with the former employee and reversed. Focusing on the text of the statute, the court agreed with the former employee that the New Hampshire disability and accommodation statute does not contain any language categorically excluding the use of medical marijuana as an accommodation. Rather, whether an accommodation for a medical marijuana user is reasonable is “intrinsically a factual determination” that “should be decided on a case-by-case basis depending on the facts of the case.” As a result, the court reversed and remanded.

New Hampshire is not alone in providing employment protections to applicants and employees using medical marijuana. In recent years, more states are passing laws, or their courts are interpreting existing laws, to protect medical marijuana users, including in Arizona, Connecticut, Delaware, Massachusetts, New Jersey, New York, and Rhode Island, among others. It is likely that list will grow. Employers in all jurisdictions should exercise caution when dealing with applicants and employees using medical marijuana. Before taking any action against medical marijuana users, employers should review the laws of the states in which they operate and work with employment counsel to help navigate this complex and rapidly evolving area of the law.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

The New Hampshire House passed an adult-use legalization bill.  Several South Dakota legislators introduced adult-use legalization measures.  Medical marijuana is still on the table in Mississippi.  Cannabis advocate Rep. Earl Perlmutter (D-CO) announced his retirement.  And finally, in Quebec, if you want your pot, you have to get your shot.

new hampshire

The New Hampshire of Representatives passed an adult-use legalization bill recently.  Now, the bill proceeds to the Senate, where previous measures have died.  The bill would allow possession and home-grow, but not sales.  Governor Chris Sununu is opposed to legalization, so the fact that the bill passed with enough votes to override a veto is significant.  Further bulletins as events warrant.

south dakota

The roller coaster that is South Dakota’s attempt to legalize cannabis continues its journey, as the state’s legislature comes back into session.  As we all know, despite significant voter support for adult-use, the successful 2020 ballot initiative met its demise in the state’s Supreme Court.  Undeterred by Governor Kristi Noem’s (R) opposition to marijuana, lawmakers introduced 31 bills concerning cannabis.  Will any of them garner enough support to override Noem’s certain veto?  Again, further bulletins as events warrant.

mississippi

If you’ve not been following the Magnolia State’s medical marijuana saga, here’s a quick recap: the state passes a ballot initiative in 2020 allowing medical cannabis.  Opponents of the measure go to court, saying the initiative is unconstitutional.  The measure is struck down. Lawmakers promise to pass a bill to implement medical marijuana in a legislative special session, which is never called.  Okay, now you’re up to speed.  In an effort to overcome Governor Tate Reeves’s (R) opposition to legalization, Senator Kevin Blackwell (R-Dist. 19) brought 3.5 grams of hemp to the governor’s office, in an effort to show him exactly what the proposed amount of legal cannabis looks like.  Further bulletins…well, you know the drill.

perlmutter retirement

One of cannabis banking’s leading advocates announced his retirement this week.  Rep. Ed Perlmutter (D-CO), author of the SAFE Banking Act, has said he will not seek re-election this year.  Perhaps his signature bill will become law before he leaves?  Not sure I’d count on that.

and finally

We’ve reported before on “Joints for Jabs,” a program in DC that gave out free cannabis to those getting COVID vaccines.  Think of that as a “carrot” approach to increasing vaccination rates.  In Quebec, they’re going the “stick” route.  The province’s rule now is: no shot; no pot.  Proof of vaccination is now required in order to enter cannabis stores.  Although some questioned the efficacy of this plan, appointments for vaccinations have increased from an average of 1,500 per day to 6,000 following the announcement of the policy.  Hey, whatever works!

Stay safe and be well everyone – we’ll see you next week!

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

We take a look at where things stand in Mississippi as regards medical marijuana.  Montana began legal cannabis sales this week.  The governor issued pardons for marijuana offenses in Colorado.  What actions might the new Virginia governor take (or not take) as the state ramps up its cannabis industry?  And finally, who better to tell you how to roll a joint than David Crosby?

mississippi

Remember when Mississippi legalized medical marijuana in a 2020 ballot initiative?  Many things have happened since then, but actual legalization isn’t one of them.  The Supreme Court invalidated the initiative.  Lawmakers came up with a bill to implement the will of the voters.  But in the end, the governor didn’t call a special session of the legislature, despite calls to do so.  So where are we now?  A new legislative session may bring legal cannabis, or it may not.

montana

A much different situation has unfolded in Montana.  Voters passed a ballot initiative to legalize adult-use sales in 2020.  Legislators worked with the state’s Department of Revenue to create rules for the industry.  Sales began on January 1.

colorado

Cannabis has been legal in Colorado for so long that the rules of the road are well established.  Now, the state is moving on to issues of social justice.  Governor Jared Polis (D) issued over 1,300 pardons to those convicted of possession of two ounces or less of marijuana.

virginia

2022 brings a new governor to Richmond.  What will that mean for the cannabis industry in the state?  Although outright hostility seems unlikely, Glenn Youngkin (R) seems less than enthusiastic about pushing the legalization process forward.  It looks like it will be 2024 before sales begin.

and finally

If you’d like a go-to source for news on the cannabis industry in California, head on over to the Los Angeles Times’ new video series – The Green Room.  You can even get lessons in how to roll a joint from David Crosby.

Every year, employers find themselves revisiting their marijuana and drug testing policies to account for newly enacted laws at the state and local level. Now is no different. Below are some highlights of what happened in 2021.

Connecticut

On June 22, 2021, Connecticut legalized recreational marijuana use by adults 21 years and older. Although provisions relating to possession are effective now, the employment-related provisions are not effective until July 1, 2022. At that time, many employers will be prohibited from taking certain actions in the absence of clear policies addressing marijuana use or evidence of impairment. With a clear and compliant policy, employers can, among other things, prohibit employees from being under the influence of, using or possessing marijuana while they are working and while performing their job duties or on company premises. If an employer has in place or implements a policy that prohibits employee use or possession of marijuana, and such policy is made available to employees in advance, the employer can take action against an employee who uses recreational marijuana or tests positive for it as part of reasonable suspicion and random drug testing.  In the case of a job applicant, an employer can rescind a job offer if an applicant tests positive for recreational marijuana so long as the employer makes the policy available to the applicant at the time of offer.

There are numerous positions and industries exempt from the law. And of course, employers still must be mindful of the state law protections currently available to medical marijuana users.

New Mexico

On April 12, 2021, New Mexico saw the legalization of recreational marijuana. While the law does not provide employment protections to recreational users and, in fact, expressly affords several protections to employers, medical marijuana users have certain protections under existing state law.

New Jersey

The “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” which was signed on February 22, 2021, received quite a bit of attention from employers largely because it arguably prohibits employers from rejecting a job applicant who tests positive for marijuana (unless a narrow exception exists, such as positions subject to Part 40 DOT-mandated drug testing).

While the new law, among other things, allows employers to test current employees for marijuana, the law limits an employer’s ability to rely on a positive marijuana test result in making employment decisions. Specifically, subject to very narrow exceptions, New Jersey employers may not refuse to employ or otherwise discriminate against an employee who uses marijuana or based solely on a positive test result for marijuana metabolites, which effectively means that an employer can take action only if the employee is impaired by marijuana at work. On this point, employers must develop certain processes before relying on a reasonable suspicion drug test, including conducting physical evaluations and designating a “Workplace Impairment Recognition Expert” (WIRE) who must be trained to detect and identify an employee’s use or impairment from drugs and to assist in the investigation of workplace accidents. As we previously wrote, the Cannabis Regulatory Commission has not released regulations relating to the WIRE (but is expected to) and has suspended the requirement for the physical examination.

New York

New York’s recreational marijuana law, approved on March 30, 2021, also received a lot of attention because it prohibits employers from taking any action against someone for using recreational marijuana when not working and, thus, arguably restricts the ability of an employer to consider a positive pre-employment marijuana test result (absent an exception).

Employers can still maintain drug-free workplaces, are not required to accommodate the use, possession, sale, or transfer of marijuana in the workplace, and may prohibit employees from being impaired during work hours. However, the law prohibits employers from refusing to hire, employ, or license, or to discharge from employment or otherwise discriminate against an individual because of an individual’s legal use of consumable products or legal recreational activities, which now includes marijuana in accordance with state law. The law revised New York Labor Law to prohibit employers from discharging or discriminating against an employee for the use of marijuana outside of work.

Employers can only take employment actions based on contrary federal and state legal requirements (e.g., Part 40 DOT) and federal contracts. Employers also can terminate an employee based on “specific articulable symptoms” of marijuana impairment that “interfere(s) with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards.” The New York Department of Labor recently reminded employers in its “Frequently Asked Questions” that a positive marijuana test does not prove impairment at work and, thus, stressed the importance of defensible reasonable suspicion testing policies and practices.

Philadelphia

Most Philadelphia employers are now prohibited from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment. Currently, only New York City and Nevada have similar marijuana testing restrictions.

Exceptions apply to, among others, any position requiring a commercial driver’s license, positions requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals, or safety sensitive positions, as determined by the enforcement agency and set forth in regulations pursuant to the ordinance. It also does not apply to: any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

Virginia

Virginia addressed both recreational marijuana and cannabis oil. With respect to recreational marijuana, a new law allows those 21 years of age or older to possess or use recreationally. Retail sales will not begin until January 1, 2024. The law does not directly address drug-free workplaces, though it acknowledges that marijuana causes impairment and prohibits driving while under the influence of marijuana.

Virginia also amended the state’s medical marijuana law to prohibit discrimination against lawful users of medical cannabis oil (as defined in the law). Employers may not discharge, discipline, or discriminate against an employee for their lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease pursuant to the state’s cannabis oil law. There are a handful of narrow exceptions.

Takeaways for Employers

Many states are considering enacting new or amending existing laws to provide employment protections to marijuana users, which could result in 2022 also being another busy year in this area. With public and legislative support for marijuana growing, employers with drug testing policies may elect to revisit their views about marijuana, especially if they find it difficult to recruit and hire talented workers or they do not employ safety-sensitive or other regulated positions.

Regardless, all employers with drug and alcohol testing programs should consider a fresh review of their policies to decide whether they will continue to test for marijuana and, if so, the circumstances under which tests will occur and the consequences for failed drug tests. Notably, some states, including Connecticut, Maine, Iowa, and Minnesota (among others) have drug testing statutes with policy requirements. Employers also should consider training their managers and supervisors to make and document reasonable suspicion determinations so they can defend any actions taken based on positive marijuana tests.

Finally, relying on state disability discrimination laws, medical marijuana users are filing lawsuits against employers for failure to accommodate and disability discrimination, which appear to be gaining traction. Thus, employers should consider having in place a clear policy and procedure for addressing accommodation requests from applicants and employees using medicinally.

We will continue to monitor new developments in this evolving area of law and blog about them in The Blunt Truth.

Happy New Year and welcome back as The Blunt Truth begins its seventh year of publication.

Last month I was on a panel at CannaVest West, the cannabis business summit held in San Francisco.  This was held in the days just before the Omicron variant dominated the news, so was reasonably well attended by industry professionals.  I would like to share with you some of the buzz from the conference.

Federal legislation legalizing or de-scheduling cannabis is not in the immediate future.  For some time now, industry leaders have been saying publicly that federal legislation is just around the corner.  Well, it’s not, and those in the industry have come to recognize this.  So, what does this mean?  It means that cannabis business will still be conducted on a state by state basis while some members of Congress continue to advocate for federal legalization or decriminalization of cannabis.

The same is true for cannabis banking legislation.  In September, the House passed a version of the National Defense Authorization Act for Fiscal Year 2022 which included the SAFE Banking Act, which would have provided safe harbors for certain types of cannabis banking services.  The Senate, however, removed the SAFE Banking Act from the defense bill shortly before passing it, marking the fifth failed attempt to pass this legislation.  While over 650 financial institutions provide some services to the cannabis industry, widespread national banking for the industry is still on hold and not likely to pass in 2022.

Section 280E of the Internal Revenue Code will continue as a very unpleasant fact of life.   Section 280E denies cannabis businesses deductions for ordinary, necessary and reasonable business expenses, effectively turning what should be a net income tax into a gross income tax.  Surprisingly, many cannabis business owners are still unaware of, or otherwise choose to ignore, the impact of section 280E and find themselves with hundreds of thousands, or even millions of dollars in tax liability, interest and penalties.

Multi-state operators (MSOs) will be very active in M&A in the coming year.  Partially as a result of no federal legalization of marijuana, and partially to satisfy shareholder demands, MSOs will continue to grow in 2022, in most cases through M&A activity.  The leading target?  Single state operators.  MSOs will look to increase their footprints as more states implement state legalization of cannabis and/or open up licenses to out of state interests.  One pitfall for single state operators and others looking to be acquired–failure to comply with 280E.

The timeline from legalization to implementation is misunderstood.  After a state legalizes marijuana, businesses gear up, real estate brokers start identifying properties, investors start looking for opportunities….and then they wait, and wait, and wait.  What are they waiting for?  They are waiting for state agencies to stop fighting amongst themselves for the opportunity to regulate and tax marijuana, lawsuits alleging unfair licensing criteria to resolve themselves and finally, regulations to be written that contain the details of how cannabis businesses will get licensed and operate.  The waiting time?  A minimum of one year, sometimes two or three.  Each state has its own laws, its own way of operating and it takes time to work out the politics and the regulatory issues and “improve” on what other states have done.  The one state that’s the exception that proves this rule?  Arizona – the adult-use ballot initiative passed in November 2020, and sales began in January 2021.

Globalization of the Cannabis Industry.  There has been and will continue to be a strong increase in the globalization of the cannabis industry.  For the US, this means both inbound and outbound transactions will increase.  Ever since Canada legalized cannabis, US companies have gone public on Canadian stock exchanges.  More recently, there have been acquisitions involving several different countries including Israel and Colombia.  Investors from Eastern Europe and Asia are actively looking at acquisitions in the US cannabis industry, both non-plant touching and plant touching companies.  A number of US cannabis companies are looking at acquisition targets in different countries to be able to take advantage of international sales.   Mexico has been attempting to legalize adult use cannabis and may do it in 2022.  Europe remains a big question.  Will European countries (other than Luxembourg and Malta) legalize adult use and open their cannabis industries to international investment or will European countries adopt more of a pharma approach with medical marijuana becoming available in pharmacies as part of a national health system?

The Swag.  Exhibitors–you need to step up your game!  We all have enough logo pens!

Once again, CannaVest West was a good opportunity for serious industry professionals to exchange ideas and renew acquaintances in person.

Welcome back to The Year In Weed, our annual roundup of cannabis-related stories.  As usual, we’ll adopt Dave Barry’s Year in Review format and look at stories month by month.  Last year, I wished for “better things” in 2021.  Is that what we got?  2020 was such a low bar, it’s hard to see how any year couldn’t clear it.  But 2021 started out badly and ended badly, with only a few nice days in the middle.

Let’s have a look back and see if 2021 was really just a “variant” (to use Mr. Barry’s word) of 2020.

We’ll begin in January when Arizona began legal marijuana sales.  They take the prize for fastest implementation of an adult-use marketplace – ballot initiative in November, sales in January.  Note: these results are not typical.  On the federal level, the USDA issued its final rule on hemp.  The industry wasn’t delighted with the new rules, but viewed them as an improvement over the interim rules.

And on we go to February, when New Jersey legalized adult-use marijuana.  It was a long and winding road, and there were times when it seemed all was lost, but it turned out okay in the end for advocates of legalization.

Which brings us to March, when that federal hemp rule took effect.  There had been some thought of delay or additional review, but all went forward as planned.  March is, in many parts of the country, Girl Scout cookie time.  Happily, one Michigan troop was able to keep selling outside a marijuana dispensary.

April was one of the biggest months for cannabis news.  New York legalized.  New Mexico legalized.  And, more ominously for legalization proponents, the South Dakota Supreme Court heard oral arguments on the 2020 ballot initiative allowing adult-use.

And then it was the merry, merry month of May.  Merry, that is, for supporters of medical cannabis in Alabama, where the Governor signed a program into law.  Considerably less merry for MMJ advocates in Mississippi, who saw the state’s Supreme Court overturn a ballot initiative.  The problem was not in the substance of the initiative itself, but in the fact that the state lost a Congressional seat in 2010, and the state never updated its initiative rules.

On we went to June, where we saw Amazon weigh in on the MORE Act (in favor) and employee testing for cannabis (no longer happening).  And Connecticut joined its New England neighbors in legalizing adult-use marijuana.

July brought us the Olympics (a year late) and the banning of athlete Sha’Carri Richardson, after a positive marijuana test.  If you’re thinking that the disconnect between state and federal law on cannabis is a dumpster fire of a problem, Supreme Court Justice Clarence Thomas shares your view.

The dog days of August brought us Louisiana decriminalizing marijuana.  It also brought us a decision from the FDA that CBD is not a dietary supplement.  Regulatory confusion continues.

The year pressed on to September where New York‘s new governor made appointments to the state’s cannabis boards.  Meanwhile, on the federal level, Sen. Cory Booker (D-NJ) announced his opposition to the SAFE Banking Act.

October brought us Halloween, and the fear that there’s cannabis in the candy.  Don’t worry – there’s not.  Turning our gaze to Europe, Luxembourg became the first country on the continent to allow growing and using cannabis.

And, all of a sudden, its was November.  Polling showed that 68% of Americans support legalizing marijuana, an all-time high (no pun intended – oh please, who are we kidding?  Pun very much intended).  Perhaps the strong support was what prompted Rep. Nancy Mace (R-SC) to introduce a legalization bill.

Finally, we arrived at December, the month of holidays and year-end reviews.  Speaking of endings, that’s what happened to legal adult-use cannabis in South Dakota, as the state’s Supreme Court struck down the ballot initiative.  That wasn’t the only setback for marijuana advocates; the SAFE Banking Act was stripped out of the National Defense Authorization Act.  But, there was news from Europe to warm proponents’ hearts – Malta legalized cannabis.

So that’s your 2021 in a nutshell.  There are so many questions left to be answered in 2022 – and just imagine the ballot initiatives we’ll be discussing!  Enjoy your New Year’s celebrations, and we’ll be back beginning January 7 to bring you a look at the news throughout the coming year.

Last month, the Centers for Disease Control, National Institute for Occupational Safety and Health, issued a bulletin directed to employers with workers who drive as part of their jobs. The bulletin, “Marijuana Driving: How to Keep Your Fleet’s Drivers Safe,” recognizes that marijuana use is on the rise due to the explosion of medical and recreational marijuana laws passed in most states. Because “marijuana is the most frequently reported drug found in post-crash testing,” the CDC explained that employers should address the issue as part of their “workplace motor vehicle safety programs.”

The CDC began with a discussion of the impact that THC (delta-9-tetrahydrocannabinol) has on users. THC is the psychoactive compound that affects parts of the brain that control movements, balance, coordination, memory, and judgment. Specifically, it can “impair coordination, distort perception, and lead to memory loss and difficulty in problem-solving.” With respect to the impact that THC has on individuals when they drive, “THC can slow reaction times and reduce the ability to make decisions.” In fact, according to the CDC, the risk of a motor vehicle crash increases after the driver uses marijuana. That said, however, the CDC recognizes that because THC can be detected in the body days or weeks after use, the actual impact the drug might have on the accident is not certain.

What does the CDC recommend for employers with workers who drive as part of their duties?

  • Develop a comprehensive marijuana policy that accounts for current laws in each state where the employer operates, which prohibits employees from using or being under the influence of marijuana (or any illegal drug) while working.
  • Consult with counsel experienced with state marijuana laws in developing a new or revising an existing drug policy.
  • Outline the specifics of any required drug testing if mandated by the policy, including the conditions under which testing will occur (e.g., random, reasonable suspicion, post-accident, etc.), the threshold that will constitute impairment, and the consequences of a positive test result.
  • Engage a Medical Review Officer to review and interpret THC drug tests.
  • Warn drivers that cannabidiol (CBD) products are not regulated, which means that products labeled “THC-free” or “pure CBD” still might have THC in them, and that consumption of CBD products with high THC levels could result in a positive drug test.
  • Provide resources to employees with drug problems.
  • Educate drivers on the effects of marijuana and other drugs on safe driving and cognitive abilities and the details of the employer’s drug policy.
  • Train managers and supervisors on policy requirements and best practices for recognizing and documenting signs of possible drug impairment.

States continue to enact recreational and medical marijuana laws at an increasing pace. Moreover, as noted by the CDC, marijuana use is on the rise across the country. These two considerations have caused employers to place greater emphasis on their drug testing policies, especially for safety-sensitive and other driving roles. Employers in all jurisdictions, especially in those with drug testing laws on the books, would be well-advised to consider a fresh look at their drug and alcohol testing policies to ensure not only compliance with the applicable statutes but also that their policies fit the company’s overall views and goals about applicant and employee marijuana use.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

Malta is legalizing adult-use cannabis.  South Dakota voters are unhappy with the governor’s actions on marijuana.  Montana writes rules for its cannabis industry.  Lawmakers in Rhode Island work on legalization.  A hemp research farm was destroyed in the recent tornados.  And finally, we have a report on the world’s largest pot brownie.

malta

Cannabis is coming to Malta.  The Parliament passed a law formally legalizing the use and growing of marijuana this week.  Nonprofit groups will manage sales, and those with prior cannabis convictions can request expungement of their criminal records.  Luxembourg decriminalized marijuana in October of this year, and Germany may move on this issue in 2022.

south dakota

Turning our attention back to the US, we see that South Dakota voters are less than delighted with the way the 2020 ballot initiative to legalize adult-use cannabis has turned out.  Mostly, Governor Kristi Noem (R) is popular in the state, but she gets a poor grade in how she has handled marijuana.  In a recent poll, over 33 percent of voters said they “strongly disapproved” of her actions.  Regular readers will recall that the Governor supported a lawsuit against the initiative that wound up in the state’s Supreme Court.  The initiative was struck down earlier this month.  Supporters of legalization are hard at work collecting signatures for the 2022 ballot.

montana

Moving west, we see that Montana will have rules in place in time for the January 1 launch of its adult-use sales program.  Despite a few stumbles along the way, lawmakers reached an agreement with the state’s Department of Revenue this week.  It’s probably not a “Christmas miracle,” but it’s nice for them to have this wrapped up in 2021.

rhode island

Will they or won’t they?  Rhode Island will have to wait until 2022 for the answer to that question.  Legislators are getting closer to an agreement, but they’re not quite there yet.  Further bulletins as events warrant.

kentucky

A hemp research farm in Princeton, Kentucky was completely destroyed by the tornado that ripped through the area last weekend.  No one suffered injuries at the site.  The state’s Agriculture Commission is currently assessing the damage.

and finally

It’s the time of year when many people head into the kitchen to bake sweet confections.  No matter how many cookies you’ve pulled out of your oven, you can’t top the work of the folks at MariMed, Inc. of New Bedford, MA.  They’ve created an 850-pound THC brownie.  Several weeks worth of effort went into creating this, and now the question is: what to do with it?

Stay safe and be well everyone – we’ll be off next week, but will return on 12/31 with our Year in Weed post.  Happy Holidays!

Effective January 1, 2022, most Philadelphia employers will be prohibited from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment. Currently, only New York City and Nevada have similar drug testing restrictions, but we expect this trend to continue. Nevada prohibits employers from taking adverse action against applicants who test positive for marijuana, with exceptions for, among other jobs, safety-sensitive positions and motor vehicle drivers who are subject to testing under state or federal law.  New York City, with some similar exceptions, also bars employers from requiring applicants to submit to testing for marijuana.  Notably, recreational marijuana laws passed recently in New Jersey and New York arguably prohibit pre-employment testing for the drug in most cases.

There are exceptions to the new Philadelphia ordinance. Specifically, the prohibition does not apply to individuals applying to work in the following positions or professions:

  • Police officer or other law enforcement positions;
  • Any position requiring a commercial driver’s license;
  • Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
  • Any position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to the ordinance.

It also does not apply to drug testing required pursuant to:

  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security;
  • Any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

The ordinance requires the agency tasked with enforcement responsibility to promulgate regulations for the implementation and administration of the new requirements.

In a time where marijuana legalization is rapidly expanding, all employers should reassess their workplace drug testing policies to be sure they are in compliance with existing and soon to be effective laws. This rapidly evolving legal landscape presents new challenges for employers, especially multi-state employers. Employers must balance complying with conflicting federal, state, and local laws, maintaining a safe work environment, and protecting applicants’ and employees’ privacy and other legal rights.