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.
Hemp Will Be A Top 10 Product In 2019, Whole Foods Predicts
The gurus at Whole Foods Market have spoken: hemp products, already incredibly popular, will be a top 10 food trend in 2019.
In a press release, the company said it relied on “seasoned trend-spotters” who have “more than 100 years of combined experience in product sourcing, studying consumer preferences and participating in food and wellness industry exhibitions worldwide,” to compile its new report on what to expect next year.
So what will be flying off the shelves in 2019? According to the experts, lots and lots of hemp.
“Hemp hearts, seeds and oils are nothing new to food and body care lovers—they’re in everything from waffle mix to dried pastas,” the company wrote. “But a new interest in the potential benefits stemming from other parts of hemp plants has many brands looking to explore the booming cannabis biz.”
“While CBD oil is still technically taboo (prohibited in food, body care and dietary supplements under federal law), retailers, culinary experts and consumers can’t miss the cannabis craze when visiting food industry trade shows, food innovators conferences or even local farmers markets.”
(For the record, there’s a lot of confusion and disagreement about the federal legality of hemp-derived CBD oil, which you can read more about here.)
The trend won’t stop at CBD, either. Apparently phytocannabinoids, those compounds that are present in cannabis but also in other plants, are “becoming more visible and prevalent.”
“It’s clear that hemp-derived products are going mainstream, if not by wide distribution, then by word of mouth!”
Hemp products that the trend-spotters recommended include a line of health supplements containing phytocannabinoids, a face cream comprised of hemp stem cells and organic shelled hemp seeds.
While cultivating marijuana’s non-intoxicating cousin is currently illegal in the U.S. outside of exceptions for state-approved hemp research programs authorized under the 2014 Farm Bill, there’s a strong possibility that industrial hemp will be broadly legalized—possibly by the end of the year—once the House and Senate reconcile their versions of a new Farm Bill and put it on the president’s desk.
Senate Majority Leader Mitch McConnell (R-KY), who introduced the provision, issued a “guarantee” last week that hemp legalization will be included in the final legislation.
That would give the hemp business an even greater boost going into the new year.
Photo courtesy of Brendan Cleak.
Washington Still Doesn’t Know What Good Marijuana Is (Or How To Test For It)
Retail sales of legal marijuana have been underway in Washington state for more than four years—and state regulators in charge of quality control still aren’t sure what good cannabis is, or how to test for it.
All product sold in stores is supposed to be tested for mold, pesticides and other contaminants by labs evaluated and accredited by a private company under contract.
That will change sometime soon. The Washington State Liquor and Cannabis Board, which regulates marijuana sales, has until January 15 to come up with recommendations for how the state should begin accrediting testing labs.
But in order to do that, regulators—or state lawmakers, or both—have to decide what, exactly, makes good weed. And nobody—not in Washington state, nor elsewhere in the U.S. where marijuana is legal—can seem to agree what that is, according to a draft government report posted online Thursday.
“Current quality standards… are insufficient to support a robust, science-based cannabis laboratory accreditation program,” the Washington Department of Ecology document says.
A “Cannabis Science Workgroup” comprised of experts in chemistry, biology, medicine and other fields to determine minimum standards for cannabis quality should be formed, wrote Sara Sekerak, a senior chemist and project manager at the department.
To reach this determination, researchers with the agency reviewed quality-control standards in four states. They found that “[w]idely accepted quality standards for testing cannabis and cannabis products do not yet exist.”
“Accreditation does not designate product standards or quality standards,” the report adds. “However, these are necessary to support meaningful accreditation.”
Eventually, testing labs in Washington will be accredited by a state agency. Until that happens, quality may remain erratic.
Because of weak or nonexistent state rules, labs “are allowed to design their own levels” of quality control and quality assurance. There are no readily available samples of agreed-upon “quality” cannabis to set a basic standard by, as there is for drinking water and other consumer goods.
Untrained workers collecting samples for testing may taint the samples. And current accreditation standards applied by the International Organization for Standardization (ISO) are not sufficient, the report found.
New York Liquor Stores Want To Sell Marijuana
Instead of creating a whole new system of specialized stores to distribute marijuana when it becomes legal, New York should just allow existing liquor and wine retail outlets to sell cannabis to adults. That’s the position of a new advocacy effort launched by owners of booze shops this month.
“With more than 2,000 wine and liquor stores from Buffalo to Montauk, we offer existing retail space with quick and cheap access to the market in every corner of the state,” reads the website for the group, which is called The Last Store on Main Street. “That means more tax revenue, and sooner, for the State to fulfill basic responsibilities and invest in the future of our neighborhoods.”
The group, which previously defeated an effort to allow wine sales in grocery stores, says that its members shops “operate under a highly regulated system that can easily and reasonably be expanded to cover marijuana retail without building new bureaucracy that only serves to eat into the tax revenues the industry creates.”
Jeff Saunders, the group’s founder, said alcohol retailers are worried that unless they are allowed to sell cannabis, their revenues could suffer.
“Recreational marijuana sales have resulted in significant declines in wine and liquor sales in other states, resulting in job loss and even stores closing,” he said, according to the news outlet New York Upstate.
On the group’s website, New Yorkers who agree with the goal of allowing weed sales in liquor stores can send prewritten letters to their state lawmakers that describe the move an “obvious win-win opportunity for a bedrock industry of New York’s Main Street economies and the future of our state.”
The effort to shape how legalization could roll out comes as the administration of Gov. Andrew Cuomo (D) is taking steps to bring about the end of marijuana prohibition.
Earlier this year, Cuomo directed the state Health Department to study legalizing marijuana, a move that led to a report that found that doing so would have more benefits than risks.
State officials are conducting a series of listening sessions around the state on the topic, and the governor created a task force to draft legalization legislation that lawmakers can consider in 2019.
Meanwhile, lawmakers are already holding hearings on ways to end cannabis prohibition.
Photo courtesy of Marilyn Acosta.