On May 29, 2020, the Rhode Island Supreme Court affirmed dismissal of an employee’s lawsuit against his former employer after it terminated him for refusing to submit to a reasonable suspicion drug test, even though his “bizarre” behavior could have been attributed to other causes. As employers are becoming increasingly concerned about marijuana use in states with recreational or medical marijuana laws, the decision serves as a reminder to employers to develop a process for making and defending a reasonable suspicion determination (including manager and supervisor training and objective and clear documentation).

Facts

The plaintiff, who worked as a “supply delivery driver,” suffered an injury to his arm and back while making a delivery. As a result of injuries he sustained while in the military, he previously had applied for and received a medical marijuana card. Although he used marijuana for medicinal purposes, the plaintiff claimed he never used it “on the clock or the job” and was never “under the effects of marijuana” while working. While his managers questioned him about the work-related injury, the plaintiff exhibited “bizarre” behavior, prompting them to request that he submit to a drug test. The plaintiff admittedly got quite angry as a result of their request and had sworn “excessively” during the conversation. Once at the drug testing site, the plaintiff submitted to a breathalyzer, but refused to submit to a urinalysis drug test. The employer terminated him for refusing the test.

The plaintiff claimed in his lawsuit (Colpitts v. W.B. Mason Co., Inc.) that the employer did not have reasonable suspicion to send him for the drug test. Rhode Island’s drug testing statute states that employers may require employees to submit to a drug test if the employer “has reasonable grounds to believe based on specific aspects of the employee’s job performance and specific contemporaneous documented observations, concerning the employee’s appearance, behavior or speech that the employee may be under the influence of a controlled substance, which may be impairing his or her ability to perform his or her job . . .” The plaintiff argued that his behavior was not indicia of drug use, and seemed to suggest on appeal that the behavior on which an employer relies to support a request for a reasonable suspicion drug test “must lead ineluctably to the conclusion that the employee is under the influence of a controlled substance and not to any other conclusion.”

The Trial and Supreme Court Uphold the Termination

The trial court admittedly struggled with the case because some of the plaintiff’s behavior could have been due to substance use but also could have been due to the pain he suffered as a result of the work-related injury. In finding for the employer, however, the trial judge said that “reasonable grounds [do not] have to be the only grounds,” and that while there might have been competing explanations for the plaintiff’s behavior, this does not mean the employer’s request was unreasonable.

The Supreme Court agreed with the trial court based on what it described as contemporaneous observations and other evidence concerning the plaintiff’s appearance, including: (1) testimony at length about the plaintiff’s “odd” behavior; (2) the plaintiff’s failure to call the warehouse to report his injury despite it being his habit to do so; (3) the plaintiff’s inability to clearly articulate what had occurred when he was injured; (4) the plaintiff’s bending over, repeated use of obscenities, staggering and saying that he was going to “puke”; and (5) his superiors’ belief that he was under the influence.

Turning to the issue of whether the behavior could have been the result of pain from the injuries, the Supreme Court wrote:

The employee’s behavior does not need to be such that it could lead to only a conclusion that he or she is under the influence of a controlled substance. The statute at issue clearly and unambiguously does not require actual knowledge that the employee is definitely under the influence, nor that the employee manifest the specific symptoms usually associated with being under the influence; the statute requires only that there be reasonable grounds to believe that the employee is under the influence of a controlled substance.

To hold otherwise, according to the court, would require managers and supervisors to “possess that degree of medical sophistication” that would allow them to distinguish between symptoms of pain and symptoms of drug use.

Employer Takeaways

Given that marijuana legislation is sweeping the nation, many employers are presently updating their policies and procedures as they expect to see increased marijuana usage among their employees. There is a state law trend towards requiring employers to prove impairment to justify adverse action based on marijuana use. This follows from the widely recognized view that a marijuana-positive result by itself says virtually nothing about impairment at work. As a result, a best practice for employers who test current employees for marijuana, or any drug, is to establish a strong record of impairment independent of a positive result. That would include thorough, contemporaneous documentation of the reasons employees are sent for reasonable suspicion testing. It also could include an accident investigation report that rules out non-drug-related causes where circumstances warrant that conclusion.

Employers should consult outside counsel for help in revising policies, addressing new marijuana challenges in the workplace, and ensuring compliance in states (like Iowa, Minnesota, and Rhode Island, among others) with comprehensive and highly technical drug and alcohol testing statutes.

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

Louisiana is expanding medical marijuana, and the United Nations may reschedule cannabis.  Meanwhile, PetSmart faces a lawsuit over pet CBD.  MedMen has campaign finance problems, and the 9th Circuit looks at taxes.

louisiana

The Louisiana legislature passed two cannabis reform bills this week.  One allows doctors to decide whether to prescribe medical marijuana to patients.  The other ensures the state will not prohibit or discourage banks and credit unions from providing financial services to legitimate cannabis businesses.  Supporters expect the governor to sign both bills.

united nations

Marijuana is currently classified as both a Schedule IV drug and a Schedule I drug on the international level.  Schedule IV is analogous to Schedule I in the United States.  Last year, the WHO recommended relisting marijuana as a Schedule I drug only.  Member states pushed back on that recommendation.  The full United Nations is scheduled to vote on revising cannabis policy in December, assuming that COVID-19 doesn’t delay the vote.

cbd for pets

As we reported earlier, PetSmart is now selling CBD oil for pets.  Well, things have not been going well.  Two lawsuits filed in federal court in Florida allege that the products did not perform as advertised.  They also note that the products cannot be sold because they have not been approved by the FDA.

campaign donations

Did MedMen executives give illegal campaign contributions to Nevada Governor Steve Sisolak?  The Secretary of State is trying to find an answer to that question.  The allegations were made in 2019, as part of a lawsuit in California.  The office only recently learned of them, when they were made public in a news article this past weekend.

tax litigation

Cannabis industry groups urged the 9th Circuit Court of Appeals to strike down Section 280E of the tax code as unconstitutional this week.  They filed an amicus brief in support of Harborside Health Center’s appeal of a U.S. Tax Court ruling.

and finally

Did Jesus smoke pot?  Biblical scholars may have a new question to ponder.  A recently published article reports that residue found at the Judahite Shrine of Arad in Israel contains THC, CBD, and CBN.

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

On May 11, 2020, a Pennsylvania court upheld the state Unemployment Compensation Board of Review’s order granting a CBD (cannabidiol) user unemployment benefits after being terminated for testing positive for marijuana (Washington Health System v. Unemployment Compensation Board of Review). The decision highlights that employers must tread carefully before taking action against applicants or employees using medical marijuana or CBD products to treat various ailments.

The claimant, a licensed occupational therapist, tested positive for marijuana after submitting to a random drug test under the employer’s drug and alcohol testing policy. That policy prohibited employees from “being under the influence of drugs or having drugs in one’s system while at work,” and defined “drug” to mean “any substance producing effects on the central nervous system, or any controlled substance.” The policy did not prohibit the use of legal drugs, but did require employees to advise the employer if such use would “pose[] a significant risk of substantial harm to the health or safety of the individual or to others” or “render[] the Employee unable to perform the essential functions of the job.” Before the test, the claimant advised her employer that she used over-the-counter CBD for symptoms related to cancer. Regardless, the employer terminated her for testing positive for marijuana.

The Board found, and the court agreed, that the claimant was entitled to benefits because the employer did not prove the claimant violated any company policy. Both pointed to the failure of the employer to present admissible evidence at the hearing that the claimant had tested positive for marijuana. That the claimant testified that she had been advised of the positive test result was not sufficient, and the Board and the court rejected the employer’s efforts at proving the fact of the positive test through hearsay evidence. The claimant maintained all along that she never used marijuana. Instead, she testified to using what she believed to be a legal, over-the-counter product to treat cancer symptoms, although she acknowledged that she had been advised that CBD use could result in a “false positive” test result for marijuana. Thus, because the employer did not present the test result or evidence that the claimant used an illegal drug, the Board concluded the employer failed to prove the claimant violated the drug and alcohol testing policy and awarded the claimant benefits. In upholding the Board’s decision, the court added that the employer also had failed to prove the claimant’s use of CBD would have affected her ability to perform the job.

As previously reported here, CBD is projected to be a $22 billion industry by 2022. However, employers remain hazy about this extremely popular product and the implications it has on their employees and businesses. CBD is now being marketed and sold in a variety of forms, including oil (the most popular), health and beauty products, vapors, beverages, and infused edibles, such as chocolates and gummies.

CBD derived from hemp usually will not report a positive test result for marijuana assuming the THC concentration in the product does not exceed .3%. However, if the CBD product contains a sufficient amount of THC, it is entirely possible the product could cause a positive drug test result for marijuana. In our prior blog, we reported studies showing that some over-the-counter CBD products did in fact have THC in them, which might explain the claimant’s positive test result in the Pennsylvania unemployment case. Regardless, before taking any action against medical marijuana or CBD 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.

Seyfarth Shaw will continue to monitor legal developments at the federal and state level.

On January 17, 2020, Hawaii Senators Rosalyn Baker (D) and Brian Taniguchi (D) introduced Senate Bill 2543, which proposes to provide employment protections to job applicants and employees who use medical cannabis. If enacted, Hawaii would join the growing number of states to pass similar laws.

Specifically, the most recent version of the bill provides that unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under a contract or federal law, it would be unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, other than contained in a collective bargaining agreement, if the discrimination is based upon either:

  • the person’s status as a cardholder; or
  • a registered qualifying patient’s positive drug test for cannabis components or metabolites, unless the registered qualifying patient was impaired by cannabis during the hours of employment or in a “potentially dangerous occupation.”

If enacted, the law would allow an employer to use a fit for duty test as a risk-based assessment tool for a registered qualifying patient, but only in “potentially dangerous occupations,” a term the bill does not define.

The current version of the bill contains numerous carve-outs, stating that it will not apply to:

  • Law enforcement officers in the state or counties or employees of a state correctional facility;
  • Firefighters employed by the state or counties;
  • Water safety officers, lifeguards, swimming instructors, or other employees of the state or counties responsible for the safety of the public at swimming pools or on beaches;
  • Employees authorized to carry or use, or both, firearms on the job;
  • Emergency medical services employees of the state or counties;
  • Employees who administer or may administer controlled substances or other drugs to patients, whether in hospitals, nursing homes, or in emergency situations such as would be encountered by emergency medical services personnel;
  • Employees who work with children, the elderly, or other vulnerable populations;
  • Civil defense emergency management personnel; and
  • Employees who operate or are in physical control of any of the following:

(1)        Any combination of vehicles that have a gross combination weight rating or gross combination weight of 26,001 pounds or more, whichever is greater, inclusive of a towed unit or units with a gross vehicle weight rating or gross vehicle weight of more than 10,000 pounds, whichever is greater;

(2)        Any single vehicle that has a gross vehicle weight rating or gross vehicle weight of 26,001 pounds or more, or any such vehicle towing a vehicle with a gross vehicle weight rating or gross vehicle weight that does not exceed 10,000 pounds;

(3)        Any single vehicle, or combination of vehicles, that does not meet the definition of class A or class B, but is either designed to transport 16 or more passengers, including the driver, or is transporting material that has been designated as hazardous under title 49 U.S.C. section 5103 and is required to be placarded under subpart F of 49 C.F.R. part 172, or is transporting any quantity of a material listed as a select agent or toxin in 42 C.F.R. part 73;

(4)        Public utilities, such as the electrical power grid or the water source;

(5)        Machinery or power equipment; or

(6)        A motor vehicle.

Employers with operations in Hawaii should closely monitor the bill’s movement through the state legislature. If enacted, the law will join the growing list of states and localities enacting specific laws that provide clear employment protections to cannabis users.

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

The news is mostly happening in the states this week. Oklahoma is having some medical marijuana issues.  Massachusetts recreational shops reopened.  Virginia decriminalized marijuana.  Ohio may not put cannabis on the ballot this November.  In federal news, the marijuana banking provisions in the latest relief bill may not be dead on arrival.  And you can now buy face masks made out of hemp.

oklahoma

Governor Stitt vetoed medical marijuana reform legislation late last week, and the legislature decided not to override that veto.  The bill would have allowed deliveries to patients and prevented the Department of Health from sharing patient information with other agencies.  The bill had bipartisan support, but it lacked the votes for an override.

massachusetts

It wouldn’t be “The Week in Weed” without a look at Massachusetts.  As we all know, the state allowed medical marijuana dispensaries to remain open during the pandemic, but recreational shops were forced to close.  Now, those shops have reopened.  Customers order online and pickup curbside, and the demand is intense.  So if you need to buy cannabis in Massachusetts, bring your patience with you.

virginia

Regular readers will recall that we reported last month on Virginia decriminalization.  And yet, we are reporting on it again.  Governor Northam signed the original bill in April, with amendments.  Those amendments went back to the legislature for a vote, and now the governor has signed the bill again.  If you’re as baffled by this system as I am, have a look at this diagram from the University of Virginia.

ohio

It’s been a roller coaster ride for ballot measures in Ohio recently.  Proponents of decriminalizing marijuana won more time and the right to use e-signatures at the federal district court.  Their hopes were dashed by the Sixth Circuit, which stayed the lower court order, pending appeal.  So now the original deadline of July 1 remains, and e-signatures are not allowed.  I suspect we’ve not heard the last of this – further bulletins as events warrant.

banking

We expressed some doubt last week as to the success of the SAFE Banking provisions in the latest pandemic relief bill.  Saphira Galoob, executive director of the National Cannabis Roundtable, is more optimistic.  Her reasons?  Cannabis banking’s strong bipartisan support and the view that it’s both a public safety issue and an economic boost.

and finally

If you’re looking for face masks (and who isn’t?), have a look at some hemp products.  Comfortable and sustainable, they just need a few more stylish designs.

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

The California State Bar Ethics Committee recently adopted Opinion No. 2020-202, which concludes that attorneys may ethically advise clients regarding compliance with California’s cannabis laws and assist them with conduct permitted under state law, despite the fact that the client’s conduct may be prohibited under federal law.

Regarding the scope of advice and assistance, the opinion states that such advice and assistance “may include the provision of legal services to the client that facilitate the operation of a business that is lawful under California law.” Examples of permitted legal services include “incorporation of a business, tax advice, employment advice, contractual arrangements, and other actions necessary to the lawful operation of the business under California law.”

Attorneys providing such legal services must inform the client of the federal-state conflict of laws, including the potential for criminal liability and the penalties that could be associated with a violation of federal law. Attorneys must not advise or assist in concealing or evading prosecution for such violations. The opinion makes clear that attorneys must also advise the client of other potential impacts upon the attorney-client relationship, including on the issue of privilege.

The ethics of advising cannabis clients comes down to informing such clients of potential federal liability but in no circumstances assisting them circumvent enforcement of federal laws. The opinion emphasizes its advisory nature, highlighting that it is non-binding upon the courts, the State Bar of California, its Board of Trustees, any persons or tribunals charged with regulatory responsibilities, or any licensee of the State Bar.

The opinion can be found here.

Hemp production, unlike much of the farming industry, has not declined due to COVID-19.  Meanwhile, certain CBD companies have wasted no time in making unsubstantiated claims related to COVID-19.  In turn, FDA and FTC enforcement has ramped up.

As the pandemic rages on, the CBD industry continues to grow as it did before the crisis, and regulatory agencies are becoming increasingly active in overseeing the burgeoning industry.  Over the course of the past eight weeks of quarantine, hemp production has remained relatively constant, and certain CBD companies have attempted to leverage the current crisis in their marketing materials, to their peril.  In response, the Federal Trade Commission (FTC) and Food & Drug Administration (FDA) continue to aggressively monitor the marketplace and have taken swift enforcement action against those making false or unsubstantiated claims.

Hemp Production Remains Relatively Unscathed, Supported by Demand and Federal Programs

With the legalization of Hemp by the 2018 Farm Bill,[1] hemp production has remained steady relative to the rest of the farming world.[2]  Hemp production buoyance may be attributed to strong demand, which has enabled some hemp businesses to do better in this crisis than they did before the pandemic.[3]  Hemp growers, like other farmers, are further supported by federal programs.  The USDA recently announced the $19 billion Coronavirus Food Assistance Program (CFAP), which provides $16 billion aimed at aiding farmers.  Its funding is sourced from the CARES Act as well as the Credit Commodity Corporation.  Separately, hemp farmers are also able to obtain assistance enabled by the $2 trillion CARES Act from the Small Business Administration.

CBD Enforcement Activity

With a new crisis, comes new opportunity – but where opportunity is exploited, enforcement actions follow.  Within the past two months, both the FTC and FDA have taken steps to demonstrate to the public their increasing aggressiveness to clamp down on illegally marketed and unsubstantiated products.

Statements from FDA

Confusion over COVID-19 and the best means to containing the outbreak still seem very much up in the air.  However, enforcement, as it relates to CBD products and their claimed medicinal effects on COVID-19, is becoming increasingly apparent to industry watchers.  First, in early March 2020, FDA Commissioner Stephen Hahn issued a statement updating the public on the agency’s work.  In his statement, Commissioner Hahn noted that the FDA was working on: 1) continuing to educate the public on the risks of CBD; 2) seeking reliable data on the safety and benefits of CBD, including opening the public docket on the matter; and 3) monitoring the marketplace for the sale and marketing of unapproved drugs.  To that end, the FDA followed up with another piece of public guidance in late April, informing the public that there are currently no approved treatments for COVID-19.  The April guidance does not explicitly call out CBD as ineffective or otherwise, but it does demonstrate that the FDA is actively monitoring the market for fraudulent products.

Joint Warning Letters

Just like other entities seeking to capitalize on COVID-19 fears, NeuroXPF, a CBD company based in Nevada, has marketed its products to treat or prevent COVID-19 on its social media accounts and website.  NeuroXPF claimed, among other things, that its product could both prevent, by boosting the user’s immune system, and help fight off a COVID-19 infection.   In response, on March 31, 2020 the FDA and FTC issued a joint warning letter asserting that NeuroXPF’s products are: 1) unapproved drugs sold in violation of the Food, Drug, and Cosmetic Act (FD&C Act); 2) that the products are misbranded; and 3) that the claims are in violation of the Federal Trade Commission Act (FTC Act) because they are unsubstantiated (i.e., not backed by competent and reliable scientific evidence).  Notably, the letter sets a 48-hour deadline for the company to respond with the actions it has taken to address the FTC and FDA’s concerns.  The response deadline is striking because the response time has been significantly reduced — previous warning letters typically allotted 15 days for responses.[4]

Similarly, on May 7, 2020, the FTC and FDA also issued a warning letter containing similar allegations to AgroTerra.  Specifically, AgroTerra claimed that its CBD products can help relieve stress, and therefore can help boost the user’s immune system to fight off COVID-19.  The FTC and FDA also noted that AgroTerra is an Amazon Associate Program participant and as such, it can earn commissions by promoting the sale of certain products “with claims on your website representing or implying that the products can mitigate, prevent, treat, diagnose, or cure COVID-19 in people.”  Much like in their earlier letter to NeuroXPF, the FTC and FDA are requiring prompt attention – Agroterra has only 48 hours to respond.

Federal Court Litigation

Lastly, the FTC has filed a complaint against Marc Ching, also doing business as Whole Leaf Organics, in April of 2020 for making false claims.  Notably, this marks the FTC’s first lawsuit involving COVID-19 related claims.  It also further showcases the severity of inaction to lesser forms of enforcement.  Whole Leaf Organics was previously cited by the FTC in late 2019 for making unsubstantiated claims that its products could treat cancer.  The defendant never took action in response to the FTC’s warnings and later began marketing his product as a possible treatment for COVID-19.  Consequently, the FTC has filed a complaint alleging that Mr. Ching has made false and unsubstantiated claims that his product treats or otherwise prevents COVID-19 and cancer.

The foregoing shows the perils faced by companies who are unaware of or willingly ignore regulatory guidance.  Seyfarth Shaw’s Cannabis and Products Liability Groups will continue to monitor and report on market developments.  Seyfarth is uniquely positioned to assist companies navigate the complex regulatory regimes established by the FTC and FDA.

[1] https://www.blunttruthlaw.com/2019/02/c-is-for/.

[2] https://subscriber.politicopro.com/article/2020/04/hemp-farmers-going-full-force-despite-pandemic-1923242 (subscription required).

[3] https://www.politico.com/newsletters/morning-agriculture/2020/04/27/usda-seen-as-mia-as-farmers-dumped-crops-787153.

[4] See, e.g., https://www.blunttruthlaw.com/2019/11/fda-and-ftc-issue-joint-warning-letter-for-cbd-products-and-senator-schumer-applies-pressure-on-fda-to-regulate-cbd/.

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

The news getting the most attention this week is the reopening of Massachusetts’ recreational marijuana shops, scheduled for May 25.  Senator Mitch McConnell (R-KY) criticized the cannabis banking provisions in the latest stimulus bill, while state Attorneys General wrote a letter supporting them.  Arizona and Nebraska legalization efforts are hit by the pandemic.  And finally, you can now buy hemp at Petsmart.

massachusetts

As everyone knows, when COVID-19 hit, Massachusetts allowed medical dispensaries to remain open.  Recreational shops, however, had to close.  Now that the state is looking at a phase one reopening,  those shops would be able to offer curbside pickup, beginning on Monday, May 25.  Any spike in cases could cause a new shutdown.

cannabis banking

The marijuana industry was optimistic about the inclusion of the SAFE Banking Act in the HEROES bill last week.  This week, there’s rain on that parade.  Senate Majority Leader Mitch McConnell has publicly stated his strong opposition to the measure.  Although much of his criticism centers around a call for research into women and minority-owned businesses, it seems unlikely that cannabis banking will be part of any final legislation.

state attorneys general

Not everyone is on McConnell’s side in this matter.  Attorneys General from 34 states and territories sent a letter to Congressional leadership this week, detailing their support for cannabis banking.  Notably, the state of Kentucky was not among the signatories.  Among their concerns is the use of cash, which could place consumers and business owners in greater risk of exposure to the virus.

arizona

The Arizona Marijuana Legalization Initiative was deal a severe blow this week.  The state Supreme Court ruled that all signatures for ballot initiatives must be collected in person.  The group hoped to use e-signatures, due to COVID-19.

nebraska

Supporters of medical cannabis in Nebraska are also dealing with safety concerns.  They are practicing social distancing while collecting signatures in person.  They need 125,000 signatures before July 2.  Perhaps they could provide some pointers to their counterparts in Arizona.

and finally

If Rover or Spot is feeling his years, you can now purchase CBD products at PetSmart in several states.  For now, the hemp extract is available in Colorado, Indiana, Kentucky, Oregon, and Tennessee, but there are plans to expand by the summer.

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

While it has been a challenge for employers to keep up with the explosion of medical and recreational marijuana laws spreading across the nation, employers have taken some comfort in that most of these states still grant employers the right to maintain a drug-free workplace and take action against those who test positive for marijuana, including rejecting job applicants testing positive for drugs. Yet, the tide seems to be shifting, with more courts granting pot smokers certain rights and finding that employers are required to comply with federal and state disability laws when confronted with medical marijuana users. Now, more jurisdictions are stepping in and granting certain employment protections to off-duty marijuana users.

Effective May 10, 2020, it is considered an unlawful discriminatory practice in New York City for an employer, labor organization, or employment agency to require a job applicant to submit to a marijuana test as a condition of employment. By way of background, on April 9, 2019, the New York City Council passed (by a 41-4 vote) a bill (Intro. No. 1445-A) banning such testing. Because Mayor Bill de Blasio did not sign or veto the bill within 30 days of its passage, it became law on May 10, 2019.

The provisions of the law do not apply to people applying to work in the following positions:

  • positions in law enforcement;
  • certain construction jobs (as defined in the law);
  • any position requiring a commercial driver’s license;
  • positions requiring the supervision or care of children, medical patients, or vulnerable persons (as defined in the law); and
  • positions with the “potential to significantly impact the health or safety of employees or members of the public,” as determined by rules promulgated by the City.

The provisions of the law also do not apply to drug testing required pursuant to:

  • Department of Transportation (Part 40) or state or local drug testing regulations;
  • federal contracts between the federal government and an employer or any grant of federal assistance from the federal government to an employer that mandates drug testing;
  • any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; and
  • any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of the applicants.

On April 16, 2020, the New York City Commission on Human Rights held a hearing to consider proposed rules to clarify certain exceptions.

Now more than ever, employers in all jurisdictions should review their existing drug testing or substance abuse policies and determine how best to address any applicant or employee positive test result for marijuana. In jurisdictions like New York City and Nevada, which we previously reported here has a law that prohibits most employers from considering a pre-employment positive marijuana test result, employers may also need to consider working with their drug testing vendors and Medical Review Officers to ensure that job applicants are not tested for marijuana or that such tests are not reported in the final test result. As mentioned, more states are enacting medical and recreational marijuana laws and courts have issued employee-friendly decisions addressing existing laws, which makes it particularly important for employers to stay ahead of this 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 big news this week is that cannabis banking is included in the latest federal relief bill.  SBA funds, however, are not.  There’s also lots of state news.  We’ve got an update on the latest Montana legalization developments.  Maine made changes to their marijuana program. Missouri is having issues with their medical marijuana licensing.  Minnesota introduced a legalization bill and of course, there’s more news from Massachusetts.  So let’s get started.

cannabis banking

The latest proposal submitted by House Democrats, entitled the HEROES Act, includes a provision that would allow “…access to financial services to cannabis-related legitimate businesses and service providers…”  The language is from the SAFE Banking Act passed by the House last year.  Whether the Senate will retain this language, considering that they have taken no action on the SAFE Banking Act, is not certain.  Groups opposing marijuana legalization said the measure “makes no sense.”

sba loans

The news on access to loans and other support from the Small Business Administration was less rosy.  Although NORML and other advocacy groups asked that state-legal marijuana businesses gain access to this relief, that language did not make it into the legislation.

marijuana research

We reported last week on the DOJ’s memo finding that the Drug Enforcement Administration’s cannabis research program is non-compliant with international drug laws. The National Cannabis Industry Association would like to get the DEA out of research entirely, and state-level research could be a substitute for the federal program.

montana update

Following up on last week’s news, New Approach Montana has begun collecting signatures to put legalization on the November ballot.  The group promises to follow safety protocols, so they can muster the support they need, without risking anyone’s health.

maine licensing

The course of adult-use cannabis in Maine has not run smooth.  Although the legislature finally overrode the governor’s veto to enact legalization in 2018, dispensaries are still not open.  Local approvals have been slowed by the coronavirus, and state regulators will only open the program when enough stores are available to meet the expected demand.  In other Maine news, the state recently removed its four-year residency requirement to obtain a license.

missouri licensing

Legislators are considering lifting the cap on medical marijuana licenses in the state.  If passed, any business that meets the state’s minimum requirements would receive a license.  This move comes amidst an investigation into the medical marijuana program.

minnesota legalization proposal

House of Representatives Majority Leader Ryan Winkler introduced a bill this week that would legalize adult-use marijuana in the state.  The bill would establish an Office of Social Equity to distribute grants to promote economic opportunity and community stability.

massachusetts news

It seems as if Massachusetts cannabis just can’t stay out of the news lately.  You will recall that medical marijuana dispensaries are essential businesses and allowed to remain open.  You will also recall that recreational stores were forced to close.  A group of industry representatives met with Governor Baker’s reopening advisory board earlier this week to plead their case for reopening.  No word yet on any change in policy.

and finally

Finding certain paper products and cleaning supplies has been a challenge for many of us during this pandemic.  Georgia-Pacific and Canadian company Bast Fibre Technologies are hoping to bring hemp toilet paper and cleaning wipes to store shelves.

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