How Marijuana Pardons Affect Employee Background Checks

On Oct. 6, 2022, President Joe Biden issued a blanket pardon to all citizens and lawful permanent residents convicted of simple possession of marijuana under the federal Controlled Substances Act. The move reflects a shift in attitudes towards low-level drug offenses, and should serve as an impetus to employers to review their policies on criminal record checks.

Because marijuana possession offenses predominantly fall under the jurisdictions of the states, not the federal government, the immediate impact of these pardons is limited. Only about 6,500 people have been convicted for simple possession under federal law and a few thousand more have been convicted under the Code of the District of Columbia.

To read the full text of this article by Duane Morris attorneys Danielle M. Dwyer and Jesse Stavis, originally published in Law360, please visit the firm website.

Is Your Business OSHA-Ready? Health and Safety Implications for Cannabis Industry Workplaces

Kathryn Brown
Kathryn Brown

If you employ workers in the cannabis industry, consider including workplace health and safety among your top priorities as you set goals for the new year.

With the rapid growth of the cannabis industry comes increased scrutiny from government regulators, including those charged with enforcing workplace health and safety laws.  For example, in December 2022, cannabis producer and retailer Trulieve announced that it reached a settlement with the Occupational Safety and Health Administration (“OSHA”) of a citation issued in June 2022 for alleged violations of the Occupational Safety and Health Act.  The citation followed OSHA’s investigation of the death of a Trulieve production worker from asthma-related complications allegedly related to her occupational inhalation of cannabis dust.  As part of the resolution of the citation, Trulieve agreed to study the hazards of exposure to ground cannabis dust for purposes of determining whether cannabis dust should be classified as a “hazardous chemical” for OSHA purposes.  Expected to be complete in May 2023, the study is likely to have nationwide implications for employers in the cannabis industry. Continue reading “Is Your Business OSHA-Ready? Health and Safety Implications for Cannabis Industry Workplaces”

Simple Possession Pardons Can Complicate Employment Background Checks

By Danielle Dwyer and Jesse Stavis

On October 6, 2022, President Biden issued a blanket pardon to all citizens and lawful permanent residents convicted of simple possession of marijuana under the federal Controlled Substances Act. Because possession of marijuana offenses predominantly fall under the jurisdictions of the states, not the federal government, the immediate impact of these pardons is limited– only about 6,500 people have been convicted for simple possession under federal law and a few thousand more have been convicted under the District of Columbia Code. However, President Biden has urged governors to follow suit, and some states have begun to explore the idea of pardoning non-violent marijuana crimes.  As such, employers need to be aware of the effects such pardons have on their criminal background processes.  Continue reading “Simple Possession Pardons Can Complicate Employment Background Checks”

Too High? THC Test Results Under Fire

Seth Goldberg
Seth A. Goldberg

Asked how the state verifies test results on THC levels in Arkansas’ legal cannabis system, the Alcoholic Beverage Control Division and Medical Marijuana Commission point to the Arkansas Department of Health.

But the Health Department points back at the commission and the ABC.

The state has no apparent procedure to confirm the test results, which play into the pricing of medical marijuana. That revelation comes as testing faces harsh scrutiny in Arkansas and beyond, as lawsuits question the integrity of testing companies that draw their revenue from marijuana cultivators. The growers know that their products rise in value with higher percentages of tetrahydrocannabinol, the psychoactive ingredient in cannabis. […]

Attorney Seth Goldberg, who works in the Philadelphia office of the law firm Duane Morris, said in an email that each state that has legalized cannabis has set rules on packaging, labeling and testing. “So this is really a state-by-state and case-by-case issue that is highly dependent on the applicable state regulations and regulatory compliance,” he said.

To read the full text of this article, please visit the Arkansas Business website (registration required).

Could Cannabis Banking Reform Finally Pass In Lame Duck?

In the Nov. 8 midterm elections, voters in both Maryland and Missouri approved legalization of cannabis for adult use, while voters in Arkansas, North Dakota and South Dakota voted no on legalization.

With the passage in Maryland and Missouri, 21 states as well as the District of Columbia have now legalized cannabis for adult use, and another 16 states permit cannabis for medical use.

Despite the fact that nearly half of all states have now legalized cannabis for adult use, it remains illegal under the federal Controlled Substances Act as a Schedule I drug, along with drugs like heroin and LSD. Such a classification means that cannabis has a high potential for abuse and has no acceptable medical use, despite research to the contrary.

To read the full text of this article by Duane Morris attorney Deanna Lucci, originally published in Law360, please visit the firm website.

House Approved Its First Appropriations Bill that Supports Tribal Cannabis Production and Distribution

Tribal leaders of federally-recognized tribes that have legalized cannabis, either medicinally or for adult use, may soon be able to breathe a sigh of relief. The Fiscal Year 2023 appropriations bill for the Department of the Interior (the “2023 Appropriations Bill”), awaiting Senate approval after having passed the House, includes a provision prohibiting the use of any Interior funds to enforce federal laws that otherwise criminalize cannabis on Indian lands where tribal law authorizes its use, distribution, possession, or cultivation. There are, however, two important caveats.

First, if the tribe is subject to state law that is contrary to tribal law, or the tribal land is located in a state where cannabis is illegal, the non-enforcement provision does not apply. Some tribes are still subject to Public Law 280, a relic from the 1950s, which gives certain states criminal jurisdiction over tribal members on tribal land. For those tribes, state criminal law would control and cannabis use, distribution, possession, or cultivation would remain illegal on tribal land.

Second, tribes must take reasonable steps to ensure tribal laws regarding cannabis are compatible with certain federal policy objectives, such as prohibiting cannabis use for minors and ensuring cannabis is not diverted to states or tribes where it is illegal, used to support organized crime or other illicit drugs, or brought onto federal public lands.

These policy objectives mirror ones that had been included in the “Wilkinson Memo,” a 2014 Obama-era statement of policy emphasizing the Department of Justice’s non-enforcement policy against tribes for legal cannabis businesses (both medicinal and adult-use). That memo gave tribes and tribal members some comfort that legalization efforts would not subject them to prosecution, or prevent federal funds from continuing to support their communities. When Attorney General Sessions rescinded that policy statement in 2017, tribal legalization was left in political limbo. The Biden administration has remained silent on the issue of tribal legalization, despite President Biden’s pardon announcement earlier this month.

If the Senate approves the 2023 Appropriations Bill, it will give tribes that have already legalized cannabis some much-needed clarity on where the federal government stands on enforcement of the federal Controlled Substances Act. During the Obama administration, tribes in states like Washington and Nevada found success in compacting with the state to create a uniform system of distribution. Tribes in California do not have that option as the state has prevented any such partnership, despite the state and tribes separately legalizing adult-use. More recently, some tribes located in New York went ahead without state partnership while state adult-use licenses linger in the approval process. Indeed, more than 100 dispensaries have opened in New York on Native land.

For tribes in states where cannabis remains prohibited in some or all forms, or the state has criminal jurisdiction over tribal members, the 2023 Appropriations Bill is a reminder that the complex system of federal and state law governing tribal affairs continues to create issues affecting tribal sovereignty.

California Joins Growing List of States to Protect Employees’ Off-Duty Use of Marijuana

By Jennifer Kearns and Danielle Dwyer

Starting January 1, 2024, employers in California will be prohibited from interfering with their employees’ off-duty use of marijuana.  On September 18, 2022, Governor Gavin Newsom signed into law Assembly Bill 2188 (AB 2188), which amends California’s Fair Employment and Housing Act (FEHA) to add protections for employees by prohibiting employers from refusing to hire, firing, or otherwise taking an adverse action against an employee based on the employee’s “use of cannabis off the job and away from the workplace.”  Although medicinal marijuana has been legal in California since 1996, and recreational marijuana legal since 2016, the FEHA did not previously provide workplace protections for employees’ permissive use of marijuana.

AB 2188 also amends the FEHA to prohibit discrimination in hiring or any term or condition of employment based on employer-required drug screening tests that detect “nonpsychoactive cannabis metabolites” in the employee’s “hair, blood, urine, or other bodily fluids.”  The California legislature stated that because most marijuana tests can only detect whether cannabis metabolites are present, and have “no correlation to impairment on the job,” employers will need to instead rely on alternative tests to determine whether an employee is under the influence at work.  These alternative tests can include “impairment tests” that “measure an individual employee against their own baseline performance,” or tests that “identify the presence of THC in an individual’s bodily fluids.”

Although the law does not specify what constitutes an “impairment test,” it is possible the legislature was referencing tests that measure an individual’s motor functions, the visual effects of being high, and/or obvious cognitive impairments such as impaired gait or mobility, glassy eyes, changes in speech, and/or reasoning ability.  However, at this time, there is no universal definition, legally or medically, of what constitutes “impairment.”  Employers wishing to utilize impairment tests should develop a protocol that identifies the signs of impairment that will be assessed and that includes training supervisors on recognizing and documenting signs of impairment.

It is also not immediately clear upon which bodily fluid tests employers can rely given that THC can remain detectable in a person’s system weeks after use and such tests might not be able to provide objective data as to whether an employee is impaired at a specific time.  The intent of AB 2188 is to protect an employee’s off-duty use, so if an employee partakes on a Saturday and fails a drug test on a Wednesday, but is not impaired on Wednesday, taking action against that employee would be discriminatory and unlawful.  Employers that rely on physical drugs should consider incorporating impairment tests into their drug testing procedures.  A two-fold approach may better protect an employer from liability under AB 2188.  Employers should also confirm with their drug testing providers that the provider tests for the presence of THC and not nonpsychoactive cannabis metabolites.

Importantly, AB 2188 does allow employers to prohibit marijuana use on the job and/or at the worksite and specifically states that there is a “consensus” that employees “should not arrive at a worksite high or impaired.”  Employers would also still be permitted to maintain drug-free workplaces and prohibit the possession of marijuana at the workplace.  The bill exempts employees “in the building and construction trades,” and positions which require federal drug tests and/or background tests.

With the amendments to the FEHA, California joins a growing list of states that have enacted employee protections for the recreational use of marijuana including Connecticut, Illinois, Montana, New Jersey, New York, and Rhode Island.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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