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Employers In Medical Marijuana States Can Still Drug Test Employees, Federal Judge Rules

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In yet another case with implications for workers who are legally using medical marijuana under state laws, a federal judge has given a New Jersey business permission to continue drug testing employees for cannabis—and to punish them if they test positive, regardless of whether they have doctors’ recommendations.

Of the 31 states that have legalized medical marijuana, only nine have some form of explicit employment protection for qualified medical cannabis patients.

New Jersey is not one of those states. And no state protects an employee from termination if the employer stands to “lose a benefit under federal law,” such as a license or funding, according to legal analysts.

Daniel Cotto Jr. had worked as a forklift driver at Ardagh Glass since 2011. According to his suit, at the time of his hiring, the company was aware he was using medical marijuana to treat pain stemming from a 2007 injury.

The company terminated him in 2017 after he declined to submit to breathalyzer and urine screenings following a 2016 accident, according to NJ.com.

As per the suit, a company human resources manager told him his medical marijuana use was a “problem.”

Cotto sued, citing state law barring discrimination.

This week, Judge Robert Kugler of U.S. District Court in Camden, New Jersey dismissed the case, ruling that the state’s medical marijuana law “does not mandate employer acceptance—or, more particularly, to waive a drug test—of an employee’s use of a substance that is illegal under federal law.”

Without such protections, according to precedent in New Jersey courts, employers “may continue to [ban] its use through lawful workplace drug testing policies,” Kugler wrote.

In Cotto’s case, his job as a forklift driver may have scotched his case from the beginning. A 1992 state Supreme Court decision ruled that forklift operators specifically are in a “safety-sensitive” position, and thus can be drug tested.

(A recent study showed that workplace deaths are significantly lower in states with legal medical marijuana.)

“Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics,” wrote Kugler, who added that New Jersey is also an “at-will” employment state—which means that employers are permitted to terminate employees “for good reason, bad reason, or no reason at all.”

The only exceptions, under discrimination laws, are if an employee is fired for being a member of a protected class, such as a sufferer of a disability.

Though medical marijuana users like Cotto may argue that injuries that require prescription medication—or cannabis—places them in such a class, Cotto did not argue that in his suit, according to Kugler.

As per NJ.com:

“Kugler said in his ruling that Cotto was not claiming that Ardagh was discriminating against him based on his disability, but ‘discriminated against him by refusing to accommodate his use of medical marijuana by waiving a drug test.'”

The case reflects the necessity for states to include employment protections in their medical marijuana laws.

It also presages another impending issue—employment protections for users of recreational marijuana. Currently, no states offer such protections, meaning legal users of cannabis still face risks that users of alcohol or other drugs do not.

To that end, Rep. Charlie Crist (D-FL) last month filed legislation that would shield most federal employees from being fired for off-the-job marijuana use that is legal in their state.

Congressman Pushes Federal Employment Protections For Marijuana Consumers

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Chris Roberts is a reporter and writer based in San Francisco. He has covered the cannabis industry since 2009, with bylines in the Guardian, Deadspin, Leafly News, The Observer, The Verge, Curbed, Cannabis Now, SF Weekly and others.

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Yelp Blocks Marijuana Businesses From Two Key Advertising Features

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Yelp is no longer offering two key advertising features to marijuana-related businesses, the company confirmed to Marijuana Moment.

Two cannabis businesses have shared an email from Yelp announcing the policy change. It states that the company had “unfortunate news” and that it will be removing both the “Business Highlights and Portfolio advertising options for cannabis-related businesses, effective immediately.”

“We will be removing these programs from your Yelp page over the course of the next few business days,” the email continues.

The Berkeley Patients Group (BPG), which is the longest-running cannabis dispensary in the country, told Marijuana Moment on Wednesday that it has already seen a significant impact since receiving the notice two days earlier.

“This is yet another blow for us—amidst a devastating pandemic, no less,” BPG Director of Marketing Lauren Watson said. “Yelp was one of only a few effective advertising channels available to legal cannabis companies, and now, without warning, we’re being shut out. Just two days after the new policy was implemented, we’re seeing over a 60 percent decline in page views.”

In a tweet, the chief technology officer of cannabis delivery company Bud.com shared a screenshot of the email from Yelp.

“It’s frustrating to pay taxes and compete with unlicensed folks who can advertise digitally against you,” he said.

The Business Highlights service allows individuals to pay to feature up to six descriptors on their page showing what “makes their business unique” such as “family-owned.” The separate Portfolio option is another paid feature where businesses can include photos of projects they’ve completed “to showcase their quality of work, expertise, and specializations along with additional details such as cost and project timelines.”

A Yelp spokesperson told Marijuana Moment that the company made the policy change in February—though these two marijuana businesses said they only received notice of the change this week. Just prior to when the company says it made the decision to block marijuana firms from the premium products, an NBC News investigation found that Yelp’s site included pages for unlicensed cannabis dispensaries, prompting the launch of the verification process.

The company allows “cannabis businesses on our platform in all states where it is either recreationally or medically legal, as it’s important that consumers have access to first-hand information about these businesses,” the spokesperson told Marijuana Moment.

The representative did not directly reply to a question about the reasoning for the policy change. Instead, they discussed how Yelp does not “take revenue from cannabis businesses that have not purchased our Verified License product.”

“By verifying their license to operate, Yelp is able to confirm to consumers that the business has satisfied the requirements of their local regulator to operate legally,” they said. “Once verified these businesses are then eligible to purchase Yelp’s enhanced profile product only, at this time.”

Asked for clarification about whether verified marijuana businesses are eligible for the two advertising services mentioned in the email announcing the change to current clients, the spokesperson confirmed they are not.

“If a cannabis company purchases Verified License, they’re then only eligible to purchase Yelp’s enhanced profile product, at this time,” they said.

The company did not immediately respond to a follow-up question about why at least some businesses were not notified about the policy change until this week even though the company says it made the decision four months ago.

“This is just one more example of prohibition discouraging companies from working with legal cannabis businesses, depriving them of the basic and vital services enjoyed by every other industry,” Morgan Fox, media relations director for the National Cannabis Industry Association, told Marijuana Moment. “Given Yelp’s size and accessibility, this unfortunate decision will certainly be a blow to many cannabis businesses which are already hurting because of the pandemic, as well as lack of access to relief funds and other financial services.”

“Thankfully, there are some other services out there that can provide business information to consumers which are either tailored to cannabis or are willing to work with related businesses,” he said.

While Yelp provides the verification service for licensed marijuana businesses, the cannabis-focused directories Weedmaps and Leafly have both taken steps in recent months to prevent unlicensed shops from being advertised on their sites. WeedMaps said it removed about 2,700 listings for illegal dispensaries as of January and Leafly reported that it booted about 1,000 as of September 2019.

Nevada Pardons More Than 15,000 People With Marijuana Convictions Under Governor’s Resolution

Photo element courtesy of Flickr/StickerGiant.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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NBA Players Union Head Joins Marijuana Company As League Reportedly Suspends Drug Testing

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The head of the NBA’s players union is joining the board of a major marijuana company at the same time reports are surfacing that players will not be tested for cannabis and other recreational drugs when they convene to wrap up the season in Orlando next month.

Michele Roberts, who has served as the executive director of the National Basketball Players Association (NBPA) since 2014, will be the first female board member of the national cannabis company Cresco Labs, the firm announced on Wednesday.

She said in a press release that she will help advance Cresco’s “distinctive brands of high quality products and services, particularly those focused on the promise held by medicinal cannabis to treat conditions and illnesses where more traditional protocols have not met the patients’ needs.”

Roberts added that she is committed to supporting the company’s social responsibility efforts to” better both individual lives and underrepresented communities.”

In her full-time job, Roberts has also advocated for reforming NBA’s marijuana policies, stating in 2018 that she feel “there are substantial signs that support its efficacy and the value that it has for us, especially pain management.”

“We’re in talks with the league to see where we can go with it,” she said at the time. “The obvious future is that marijuana will be decriminalized probably throughout the country in short order.”

Now it seems those negotiations are paying off, with sources telling The Athletic that the league and the players’ union have agreed to suspend testing for recreational drugs, at least for the rest of the current abbreviated season. NBA will continue to test for performance-enhancing drugs, however.

This is apparently an extension of a temporary policy, as players reportedly have not been tested for cannabis during the coronavirus pandemic that forced NBA to go into hiatus earlier this year. It’s not clear if it will be extended indefinitely following the “bubble” tournament housed at Disney World, but negotiations over a collective bargaining agreement are still in the works.

“It’s something that we are talking to Michele Roberts and the players association about, about what our policy should be,” NBA Commissioner Adam Silver said last year. “I think it’s not as much about what guys do in the summer. If they want to smoke pot in the summer, whatever. It’s legal in a lot of states, to your point. No issue. I do think there’s a little bit of concern about some of the pot smoking in-season.”

If NBA does ultimately end marijuana testing, it would be another example of evolving drug policies within national sports leagues. Earlier this year, the MLB announced that players would not longer be tested for cannabis, though they’re barred from being sponsored by marijuana companies.

The NFL also made the decision to end suspensions for positive drug tests as well as limiting the testing window.

Colorado Marijuana Social Equity Businesses Would Be Defined Under New Bill

Photo courtesy of WeedPornDaily.

 

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MedMen Temporarily Closes All Locations And Condemns Looting In Internal Memo

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The national marijuana dispensary chain MedMen has temporarily closed down all of its stores after several of its Los Angeles-based locations were looted over the weekend. While the company strongly condemned the looting, it said it recognizes the tragedies that led up to the incidents and is offering to support its black employees during this time.

Businesses in cities across the country have been impacted by outrage over recent police killings of black Americans. That includes George Floyd, whose death at the hands of a Minneapolis police officer ignited mass protests, some of which have been followed by looting.

In an internal memo to MedMen employees that was obtained by Marijuana Moment, the company said that its locations in downtown Los Angeles, West Hollywood and Beverly Hills “were heavily damaged, as were a number of other businesses, including those in the cannabis community.”

“Effective immediately, we are temporarily closing all stores and the corporate office to protect the safety of our employees,” the memo states. “The safety of everyone in the MedMen family is the most important thing right now, and we are grateful to report that while our stores were damaged, our employees and security guards were unharmed.”

“Our assumption is that all of you know this, but we want to take the time to make it very clear there is a bright line between the peaceful protests yesterday and the criminal activity that followed,” it continues. “We do not know what goes through the mind of those that would promote violence or destruction immediately on the heels of a peaceful protest designed to bring us all closer together.”

But while that language largely contrasts with that of some other impacted marijuana businesses that have more clearly sympathized with people expressing outrage in the face of police killings, MedMen also extended a hand to its black workers and said it appreciates the circumstances that contributed to the situation.

“Regarding the events of the last week, we are heartbroken, outraged and horrified by the tragic events in our country and the continued violence and injustice perpetrated against the Black community. To our Black colleagues, if there is any way we can show up for you during this time, we would encourage you to email [the CEO’s office],” the company said. “In the meantime, we offer our deepest empathy, we are here to listen, we are here to help and we are here to stand with you as a MedMen family in any way we can.”

“To those fighting for social justice, MedMen stands with you. The horrifying treatment of our black colleagues and community must end,” MedMen added in a statement to Marijuana Moment. “Systematic oppression and inequality must end. We are committed to using our platform to help. We will rebuild and come back stronger in a way that makes our communities proud and advances justice and equality.”

A spokesperson said that the company is actively assessing its plan moving forward. While the representative initially suggested to Marijuana Moment that employees would continue to be paid during the temporary shutdown, he later said that the company “will take care of our employees as demonstrated by our response to COVID-19” but could not get into specifics about ongoing financial decisions.

Meanwhile, the rapper Berner, who owns the popular Los Angeles dispensary Cookies, said after his shop was looted that ensuring justice and addressing the problems underlying the protests is more important than the loss of merchandise.

“It’s extremely unfortunate what happened to our store tonight on Melrose. But as a human living in the world we’re living in today, I cannot expect anything less until justice is served,” he said. “We can rebuild our store, but you cannot bring someone back to life.”

Debby Goldsberry, the executive director of the dispensary Magnolia Wellness Oakland, struck a similar tone in a Facebook post about their experience being looted. She said that while the property loss was extensive and will hit the small retailer hard financially, this “story is not about Magnolia Wellness. It’s about this nation, blistering in pain. It’s bubbled up, and can’t be stopped, no matter how much salve we put on it.”

“Our shop can be rebuilt, but the black lives taken by the police, again and again, are gone forever. Simply put, the police are murdering people right before our eyes, and the anger has boiled over. We saw it on camera, watching these men rampage through our space,” she wrote.

“Anger like this is based in injustice. Anger like this is based in facts. Anger like this is based in hundreds of years of oppression, and in never, ever getting a fair shot, no matter what, because the system is set up in a systematic manner that assures you never will,” the post continues. “George Floyd’s horrible death is just one of so many by now that it’s become impossible to track.”

Kris Krane, president of 4Front Ventures, said one of the company’s Mission dispensaries in Chicago was also raided over the weekend.

“Despite the sadness and destruction, my support for the protests and the underlying goal of ending police brutality, systemic law enforcement reform, and societal recognition of the fundamental humanity of people of color in this country remains undeterred,” he said. “I stand with those protesting for human rights and justice, and understand why some feel so disempowered that they have no recourse but rage and violence.”

Cannabis shops from California to Oregon have impacted by looting in recent days.

This story has been updated to include additional commentary on future plans from a MedMen spokesperson

Rapper Who Owns Looted Marijuana Dispensary Says Justice Is More Important Than Business

Photo courtesy of WeedPornDaily.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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