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

Connecticut and Rhode Island may legalize adult-use cannabis, but then again, they may not.  Montana makes some progress in setting up a marketplace.  Louisiana decriminalizes marijuana possession.  There’s a move in Congress to decriminalize all drugs, including cannabis.  And finally, we see a new plant making an appearance at the Philadelphia flower show.

connecticut

As Yogi Berra would have said, “It ain’t over ’til it’s over.”  And in Connecticut, cannabis legalization is not over.  Earlier this week, the Connecticut Senate passed an adult-use bill.  Then Governor Lamont (D) said he would veto the measure, due to concerns over how social equity applicants would be defined.  Now, the Connecticut House has passed a bill that revises the offending section.  Will the Senate agree to this new version?  Will the Governor sign it?  Stay tuned!

***breaking news***

Connecticut’s Senate passed the House bill, and it now heads to the governor’s desk.

rhode island

So what’s going on next door in Rhode Island?  A Senate committee passed a legalization bill that will make its way to the full Senate for a vote next week.  What will happen after that is anyone’s guess, as the House is dealing with a budget bill that takes priority over other legislation, and they have three different bills to consider.  A special session could be in their future.

montana

Regular readers will recall that Montana was one of the states that legalized marijuana in November 2020.  They’re now getting ready to open up an adult-use market.  Until the end of the year, only existing medical marijuana dispensaries will be able to sell cannabis in the state, but a full market will open in 2022.  Opponents of the ballot initiative dropped a lawsuit, which claimed the initiative was unconstitutional, so the sailing now looks pretty smooth.

louisiana

Possession of a small amount of cannabis will no longer land you in jail in the Pelican State.  As of August 1, possession of up to half an ounce will be a misdemeanor and bring a $100 fine.  As for full legalization?  Governor Edwards (D) thinks it will happen, but not in the near future.

federal decriminalization

So what’s happening on the federal level?  There’s a new measure about to be introduced that would decriminalize possession of all drugs, including cannabis.  Sponsored by Reps. Cori Bush (D-MO) and Bonnie Watson Coleman (D-NJ), the bill would encourage states to decriminalize as well.

and finally

The Philadelphia Flower Show is the country’s biggest show of its kind.  People (before COVID) would come from all over to see floral and landscape displays.  This year, they could also see a marijuana display.

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

Connecticut’s legislature will hold a special session to decide on legalization.  Mississippi’s governor backs medical marijuana. Delaware teeters on the edge of legalizing adult-use cannabis.  The NFL will award $1 million in grants to research alternative to opioids for pain management.  And finally, you can join the tiny house craze by building your home out of hempcrete.

connecticut

Which state will legalize cannabis next?  The safest bet would be Connecticut.  But the road to adult-use never does run smooth.  Although a legalization measure passed the state’s Senate this week, Republicans in the state’s House threatened to filibuster the bill.  So it’s off to a special session, where the House Speaker insists the measure will pass by the end of the month.

mississippi

Mississippi Governor Tate Reeves (R) expressed support for medical marijuana in the state this week.  Recognizing “the will of the voters,” he said he wants the legislature to enact a cannabis program in the state quickly.

delaware

Although less likely to legalize than Connecticut, Delaware could go green this year.  Since the bill under consideration imposes a tax on sales, it needs a three-fifths majority to pass.  Even if the legislature passes the bill, which is no sure thing, the governor may veto it.

nfl research grant

The National Football League and the NFL Players Association will give $1 million to fund up to five research studies on pain management and the effect of cannabinoids on elite football player performance.  The deadline for proposals is July 31; funding will be awarded in December of this year.

and finally

Are you looking for a new home, but the housing market right now is too daunting?  Well, if you’ve got a spare $26,900 (plus taxes and shipping), you can get a DIY kit to build a tiny house/backyard cabin.  The best part?  It’s made out of hempcrete!  All it takes is a week’s worth of time, some basic power tools and a group of handy friends.

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

Yet another federal legalization bill begins its journey.  Amazon endorses legal cannabis and stops testing its employees for marijuana.  We have an update on the Mississippi situation.  Bad news emerges for legal sales in the District of Columbia. And finally, we have a look at how the cannabis industry hopes to get its workforce vaccinated.

federal legalization

Here we go again: Rep. Jerry Nadler (D-NJ) introduced the MORE Act, as he did in the last Congress.  See our reporting on that bill here.  Some things have changed since that earlier bill went down to defeat in the then Republican-controlled Senate.  Several states legalized cannabis, either at the ballot box or in the legislature.  Support for legalization is at an all-time high.  Could this time be the charm?  Further bulletins as events warrant.

amazon

Speaking of the MORE Act, it got a boost this week from the world of business.  Amazon, the nation’s second largest company, announced it would no longer test its employees for cannabis use, except for those positions mandated by federal regulations.  The company also stated in a blog post that its public policy team would be actively supporting the MORE Act, and urged other businesses to do so.

mississippi

As promised, here’s the latest on the goings-on in the Magnolia State.  The Secretary of State, Michael Watson, stated that he won’t ask the state’s Supreme Court to reconsider its ruling striking down the medical marijuana ballot initiative.  Instead, he favors a special session of the legislature to deal with the ballot initiative issue.  Supporters of medical cannabis want the high court to reverse its ruling and are making their views known.  Prize for best use of poetry on a sign goes to the lady in the flowered dress.  No word yet on the legislature reconvening; yet again, further bulletins as events warrant.

district of columbia

Washington DC legalized adult-use marijuana back in 2014.  It still has no legal market for sales, due to a budget rider that prevents them.  See our description of the DC landscape here.  (And if you have a spare 17 minutes, that John Oliver video we linked to still works and is both hilarious and informative.)  The hope for those looking to set up a cannabis market was that this year, with a Democratic President and Democrats controlling Congress, the budget rider would disappear.  So far, no such luck.  The city’s representative, Eleanor Holmes Norton (D) hopes to change that.

and finally

Marijuana companies want their employees to get their COVID shots, so they’re looking at incentives to encourage that.  Big parties, cash payments, and paid time off to get vaccinated and deal with any side effects are all on offer.

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.

Sales of adult-use marijuana will begin in January in Montana.  A new bill would force the FDA to implement CBD regulations.  Mississippi voters are unhappy over the court ruling on medical marijuana.  Connecticut and Rhode Island may join their New England neighbors in legalizing cannabis.  And finally, it’s cicada season in the mid-Atlantic.

montana

Adult-use sales begin in January 2022, under the new law establishing a recreational marijuana market in Montana.  Although this pushes the deadline established by the ballot initiative back by three months, reaction to the law is generally positive.  The law sets limits on the number of plants residents can cultivate at home, and on the amount of THC in retail products.

cbd regulations

Three Senators introduced a bill directing the Food and Drug Administration (FDA) to promulgate rules for the CBD industry.  Sens. Ron Wyden (D-OR), Jeff Merkley (D-OR) and Rand Paul (R-KY) believe that the lack of agency guidance hampers the legitimate CBD industry and causes confusion for consumers.

mississippi

As we reported last week, the Mississippi Supreme Court recently ruled that the state’s ballot initiative process is unconstitutional. This means the medical marijuana program backed by a majority of voters has been thrown out.  This isn’t sitting well with the electorate, who support a special session of the legislature to enact a medical cannabis program.   Further bulletins as events warrant.

connecticut and rhode island

Moving to New England, could two more states legalize adult-use marijuana?  The clock is ticking in Connecticut, where the legislative session ends on June 9.  House members hope to reach agreement this week and move a bill to the Senate next week.

As for Rhode Island, time isn’t quite as short there, but the momentum doesn’t seem as strong either.  A new bill, emphasizing social equity, may gain some traction.

If both states legalized, (note: a BIG if), that would leave New Hampshire as the only states in the region without an adult-use market.  A recent poll found the support for legalization was higher than support for the anti-legalization governor.

and finally

The only topic capable of distracting DC residents from the weather this time of year is the emergence of Brood X cicadas.  Tunneling up from the ground every 17 years, these bugs with the beady red eyes take over much of the area, shedding their exo-skeletons and keeping up a background hum that resembles a buzz saw, but less melodious. They live only a short time, and they spend their few days on the lookout for love.  It’s a bizarre life cycle, made even more weird by a fungus containing psilocybin that attacks the males.

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.

The Mississippi Supreme Court struck down the state’s medical marijuana ballot initiative.  Alabama, moving in the opposite direction, legalized medical cannabis. On the federal level, Republicans proposed decriminalizing marijuana.  The DEA moved forward on cannabis research (really!).  And finally, a racehorse tested positive for CBD.

mississippi

Legal medical marijuana had a short life in Mississippi.  Approved by the voters in November 2020, it died this week in the state’s Supreme Court, where the justices declared that it was based on conditions that no longer exist.  The ballot initiative process requires that at least 20% of all signatures to put an initiative on the ballot come from each of the state’s five Congressional districts.  The problem is that, in the 2000 census, the state lost a seat, so there are only four districts.  The state never updated the rules, so it’s now impossible to follow them.  Will the legislature enact a bill to legalize medical cannabis?  Possibly, but maybe they should do something about their ballot initiative conundrum first.

alabama

In other news from the Deep South, Alabama‘s governor Kay Ivey (R) signed a bill legalizing medical marijuana.  The law establishes a Commission to run the program and license providers. The bill had bipartisan support, as Republican opposition to legalization waned, as it has in many states across the country.  The law goes into effect immediately.

federal decriminalization

If you need further proof that Republican views are changing as regards cannabis, look no further than  the Common Sense Cannabis Reform for Veterans, Small Businesses, and Medical Professionals Act.  This bill, introduced by Rep. Don Young (R-AK) and Rep. Dave Joyce (R-OH), would remove cannabis from the Controlled Substances Act, effectively decriminalizing it.

research

The Drug Enforcement Administration (DEA) has been dragging its feet on marijuana research for years now, as we’ve previously reported.  At long last, we can see signs of movement.  The agency announced that it has awarded a “Memorandum of Understanding” to several applicants to study cannabis.  They expect to get registration numbers this week, so this is really happening.

and finally

It’s not just Bob Baffert that’s having drug problems with his horses.  A thoroughbred named Roses and Candy tested positive for CBD.  It may have come from the jockey, who had been using CBD himself.  As more humans use CBD, we can only expect more “spill over” into the rest of the animal kingdom.

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.

Two bipartisan cannabis research bills start their legislative journey.  The Supreme Court refuses to hear a 280E case.  Attorney General Garland reiterates his disinterest in prosecuting marijuana users abiding by state law.  The Texas legislature moves on cannabis decriminalization.  And finally, you can now purchase Amish CBD.

cannabis research bills

A bipartisan, bicameral group recently introduced the VA Medicinal Cannabis Research Act.  This bill directs the Department of Veterans Affairs to conduct research into the efficacy of medical marijuana in treating veterans with PTSD.  Also this week, another bipartisan, bicameral group introduced the Marijuana Data Collection Act.  This bill requires the federal government to study the effects of legal cannabis on  state economies, public health, criminal justice, and employment.

supreme court

Moving to the judicial branch, the U.S. Supreme Court refused to hear a case involving section 280E of the Internal Revenue Code this week.  The case began in 2015 in the U.S. Tax Court, which threw out an attempt to appeal an IRS tax bill decision.  Then, the 9th Circuit affirmed the Tax Court’s decision.  With the Supreme Court’s refusal to hear the case, the companies will have to pay up.  This is not the first time the Court has refused to hear a 280E case; they did the same thing in 2019.

department of justice

Attorney General Merrick Garland stated that he did not believe prosecuting marijuana users in states where cannabis is legal is a good use of the Justice Department’s resources.  His remarks came during a House Appropriations subcommittee hearing during which he was asked about large-scale trafficking.  In other state-law protection news, a bipartisan group of House members sent a letter to House leadership asking that the DOJ be prevented from prosecuting those who follow state cannabis laws.  The request would preserve protections for medical marijuana companies and users and add protections for the adult-use industry.

texas

In state news, the Texas House passed several bills dealing with cannabis.  One would decriminalize marijuana possession.  The second would expand the state’s medical marijuana program, and the third would reduce penalties for possession of some concentrates.  The measures now move to the Senate – further bulletins as events warrant.

and finally

If you’ve been hoping to purchase CBD from Amish vendors, you are in luck.

Stay safe and be well everyone – we’ll be off next week, so we’ll see you again on May 21.

Recently, when dismissing a job-applicant’s disability discrimination claims brought under California state law, the U.S. District Court for the Central District of California issued two welcome reminders to employers.  First, an employer can condition an offer of employment on the completion of a preemployment drug screen, including a test for marijuana. This is true even though California has legalized marijuana for both recreational and medical purposes.  Second, an employer is not under any obligation to engage in the interactive process before an applicant passes a pre-employment drug screen.

Case Summary

In Espindola v. Wismettac Asian Foods, Inc., Case 2:20-cv-03702 (C.D. Cal. Apr. 28, 2021), Plaintiff applied for and was offered a position with the Company. Before Plaintiff started work, the Company contacted him to schedule a preemployment drug screen, which was required of all new-hires.  In response, Plaintiff stated that he needed to take care of some personal issues, and could not take the preemployment drug screen before his first scheduled work day.  Thereafter, and before starting work, Plaintiff applied for a medical marijuana card in the state of Florida.

The day before Plaintiff was scheduled to start working, he completed a “personnel information sheet,” on which he indicated he was not “disabled.”  The next day, he met with Human Resources.  During the meeting, Plaintiff signed a drug testing consent form, and disclosed for the first time that he had “chronic back pain” and had been “prescribed” marijuana to treat his condition.  Critically, Plaintiff did not provide any other details or documents — such as a doctor’s note or medical records — to substantiate the nature of his condition or explain any limitations on his ability to perform his job.

The next day, Plaintiff’s request for a medical marijuana card was granted, and he forwarded the approval to Human Resources.  The HR team met with senior management, and all agreed that it was Company policy for everyone to submit to a preemployment drug screen.  Plaintiff subsequently took the required drug screen and tested positive for marijuana metabolites.  As a result, his employment was terminated for failure to pass the preemployment drug screen.

In response, Plaintiff filed suit, alleging, among other things, 1) wrongful termination based on a disability; 2) failure to accommodate a disabling condition; and 3) failure to engage in the interactive process, all in violation of the California Fair Employment and Housing Act (“FEHA”).  The Company moved for summary judgment on all of Plaintiff’s claims, which the Court granted in its entirety.

Regarding Plaintiff’s discriminatory discharge claim, the Court held that it failed for several fundamental reasons.  For starters, Plaintiff only disclosed that he purportedly suffered from “chronic back pain,” which was not sufficient to establish that he suffered from a disability as a matter of law.  Rather, to make such a showing, Plaintiff was required to submit details regarding his specific condition or, more significantly, how his chronic back pain “limited a major life activity.”  Plaintiff’s failure to provide these necessary details — along with his failure to submit any documentation to substantiate his purported condition — was fatal to his claim.

Yet even if Plaintiff could have established that he suffered from a disability, the Court held that his discharge claim still failed because the Company set out a legitimate nondiscriminatory reason for the termination of his employment — Plaintiff failed a preemployment drug screen — and Plaintiff could not show pretext.  Indeed, Plaintiff received notice of the Company’s drug screening policy before his employment started, and the Company required all employees to submit to a preemployment drug screen.  There was no evidence that Plaintiff was treated differently.

Moreover, the Court further explained that Plaintiff’s argument that the drug screen was “illegal” because it was administered after Plaintiff started working was simply wrong.  Crucially, Plaintiff received notice of the drug screen before starting work, and the only reason he took the drug screen after starting work was because he requested that the test be delayed so he could take care of some personal issues. He was not immune from the results of the preemployment drug screen based on the fact that he asked for and was allowed to take it after his employment began.

Finally, Plaintiff’s claims for failure to accommodate and failure to engage in the interactive process also failed for similar fundamental reasons.  Foremost, Plaintiff failed to establish that he was disabled.  Setting this fatal issue aside, these claims also failed because the Company was not under any obligation to engage in the interactive process before Plaintiff passed the drug screen, which was an express condition of employment.

Employer Takeaways

This decision comes as welcome news to California employers, and reaffirms that an employer may lawfully condition employment on the passage of a preemployment drug screen.  When making an offer of employment, employers would do well to provide written notice to the offeree that their employment is conditioned on taking and passing a drug screen, and should get the offeree’s agreement in writing.

For more information on this or any related topic, please contact the authors or your Seyfarth attorneys.

On April 28, 2021, Philadelphia Mayor Jim Kenney signed Bill No. 200625 which, effective January 1, 2022, prohibits employers 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.

There are exceptions to the new Philadelphia bill. 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 bill.

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 bill 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.

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

Legislation to implement cannabis legalization moves forward in Montana.  Florida’s ballot initiative runs into trouble.  The South Dakota Supreme Court heard oral argument in the lawsuit seeking to overturn legalization.  The NFL won’t test for marijuana use in the off-season.  And finally, will we see hemp at the United States Botanic Garden?

montana

We begin today’s post in Big Sky country.  Montana was one of several states to legalize cannabis through a ballot initiative last year, and legislators have been working on legislation to implement the initiative.  As we’ve reported before, the path has not always been smooth.  Finally, the legislature sent a bill to the governor earlier this week, which he is expected to pass.

florida

Florida’s chances for a ballot initiative took a hit this week.  The state’s Supreme Court ruled that language proposed by Make It Legal Florida failed to inform voters that cannabis is illegal under federal law and would remain illegal, even if the ballot initiative passed.  So it’s back to the drawing board for legalization supporters.

south dakota

The continuing saga that is South Dakota’s path to legalization took another turn this week.  The state’s Supreme Court heard oral arguments this week on whether Amendment A is unconstitutional and should be struck down.  Opponents of the measure, including Governor Kristi Noem (R), claim that the initiative contains more than one subject, and thus cannot stand.  No word on when we can expect a ruling.

nfl drug testing

NFL players are free to smoke a joint or eat a brownie this off-season, as the league has announced they will not be testing for THC until the preseason.  The policy is part of the collective bargaining agreement negotiated last year.

and finally

Rep. Eleanor Holmes North (D-DC), along with Reps. Barbara Lee (D-CA) and Earl Blumenauer (D-OR) would like to see some hemp on display at the U.S. Botanic Garden.  The three sent a letter to the institution recently, noting that hemp is now legal, and has a long history of use in the country.  Rep. Norton suggested it might find a home in the “Medicinal Plants” section.

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.

The SAFE Banking Act passes the House – again.  A bill to allow veterans access to medical cannabis gains interest.  Marijuana legalization polls favorably.  Idaho is (again) in the news.  And finally, if you’re looking for cannabis-themed license plates, Colorado has what you need.

SAFE BANKING ACT

They say everything old is new again, and the adage certainly holds for cannabis banking.  The House passed the SAFE Banking Act this week by a vote of 321-101.  If that sounds familiar, it should.  The House passed the Act in 2019, as we reported here.  It also appeared in various House versions of COVID relief packages.  And every time, the measure went nowhere in the Senate.  But, you’ll recall, the Senate is now under new management.  Will the Democrats be able to find ten Republicans to join them in enacting this legislation?  Will they be able to keep all of their own members on board?  Never say never, but we’re not holding our breath.  If reluctant lawmakers need any encouragement, they might find comfort in the support of various governors, banking associations and state treasurers.

medical cannabis for veterans

In other throwback legislation news, the Veterans Medical Marijuana Safe Harbor Act is back.  Introduced in the last Congress, it went nowhere, but perhaps this time will be different?  As with banking, support from Republicans will be crucial to passage.  The House version of the bill has bipartisan support, but the Senate version, as of this blogging, does not.

marijuana – we really, really like you

Over the years, Americans have become less opposed to the legalization of cannabis.  A new poll from Quinnipiac University shows that support for adult-use is now more than 50% in all demographics: age, race, level of education, gender, political party.  Overall support stands at 69%.

idaho

If you clicked on the link above, you’ll have noticed the reporting on the poll came from an Idaho group backing the Idaho Medical Marijuana Act.  So let’s check in on the Gem State (yeah, we thought it would be the Potato State too) and see what’s happening.  The governor signed a bill legalizing hemp.  The legislature voted down a bill that would have made legalizing marijuana almost impossible.  Wow – sounds like Idaho is warming up to cannabis, doesn’t it?  Well, think again.  The governor just signed a bill making it harder to put referendums on the ballot.  The governor said he signed the bill to prevent “urban voters” from having too much say in the initiative process.

and finally

Colorado decided to celebrate 4/20 and raise money for a good cause by auctioning off rights to cannabis-themed license plates.  The plate that raised the most money was “ISIT420” with a winning bid of $6630.  Proceeds will benefit the Colorado Disability Rights Funding Committee.

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