A Connecticut woman’s rights under that state’s medical marijuana law were violated when a company refused to hire her on the basis of her legal cannabis use, and a lawsuit seeking damages against her would-be employer may proceed, a federal judge ruled.
In 2016, Katelin Noffsinger filed suit against Bride Brook Health and Rehabilitation Center, a federal contractor, after a job offer was rescinded following a positive test for cannabis on a pre-employment drug test.
Noffsinger had accepted a management-level position with the firm, which then scheduled a drug test. Prior to the test, Noffsinger informed Bride Brook that she was a qualified cannabis patient under Connecticut’s Palliative Use of Marijuana Act, and used the drug—namely, synthetic marijuana pills, consumed in the evening—to treat post-traumatic stress disorder following a 2012 car crash.
After learning of Noffsinger’s patient status, Bride Brook officials debated over email the best way to inform her that she could not be hired because of her marijuana use.
After the positive drug test and the subsequent rejection, Noffsinger filed an employment-discrimination lawsuit in state court. The case was elevated to federal court after Bride Brook used federal drug laws—including federal cannabis prohibition—to justify their actions.
Unlike some other states including California, Connecticut’s medical-marijuana law, passed in 2012, offers specific employment protections for cannabis patients.
Employers don’t have to accommodate cannabis use during work hours or employees who are intoxicated in the workplace, but any off-hours marijuana use by a certified patient following state law is protected.
In court filings, Bride Brook argued that the federal Drug-Free Workplace Act preempted such protections.
Because Bride Brook was a federal contractor, it was required to perform such drug tests—and had the firm still hired Noffsinger after the positive drug test, it would have been “defrauding” the federal government, the firm argued.
In a ruling issued last week, U.S. District Court Judge Jeffrey Alker Meyer disagreed.
While Meyer rejected Noffsinger’s requests for summary judgment and attorney’s fees, his ruling means that Noffsinger can now seek monetary damages in a jury trial.
The federal Drug Free Workplace Act requires only that employers make a “good faith effort” to maintain a drug-free workplace, Meyer ruled.
Such efforts include posting warnings about drug use and setting an office policy.
A “zero-tolerance” policy that includes actively testing and then rejecting protected applicants on the basis of a test go above and beyond that threshold, Meyer wrote.
A previous ruling in Noffsinger’s case, also by Meyer, was the first instance in which a federal judge ruled that the federal Controlled Substances Act does not preempt state medical-marijuana laws that provide employment protections.
Other classes of workers, including workers in “safety-sensitive” positions and employees of the federal government, may have to wait for similar protections.
Trump Treasury Official Wants Congress To Fix Marijuana Businesses’ Banking Issues
Congress needs to come up with a solution for banking access by the marijuana industry, a top federal Treasury Department official said on Wednesday. And he hopes that will happen by 2020, if not sooner.
Joseph Otting, the comptroller of the currency, told reporters that lawmakers “have to act at the national level to legalize marijuana if they want those entities involved in that business to utilize the U.S. banking system,” according to PoliticoPro.
— POLITICO Pro (@POLITICOPro) January 16, 2019
Cannabis businesses acting in compliance with state law face uncertainty when dealing with federally regulated financial institutions. And banks potentially risk being penalized for servicing those businesses, leading many to avoid the industry altogether.
That said, a steadily growing number of banks are operating accounts for cannabis companies anyway, federal data shows.
“If I’m a betting person, I’m like 25-30 percent maybe next year, but I would hope by 2020 we can get this issue resolved,” said Otting, who was also recently assigned to double duty as acting director of the Federal Housing Finance Agency.
He previously called the existing situation “generally not healthy,” echoing comments made by Federal Reserve Chairman Jerome Powell, who said “it would be great if [the banking issue] could be clarified.”
Similarly, Treasury Secretary Steven Mnuchin has described the banking conflict as untenable. He said last year that his department was “reviewing the existing guidance,” referring to a 2014 Obama-era policy memo meant to provide direction for banks on how to service marijuana businesses.
“We do want to find a solution to make sure that businesses that have large access to cash have a way to get them into a depository institution for it to be safe,” he said.
Sen. Chuck Schumer Welcomes Major Cannabis Company To New York’s Hemp Industry
Canadian marijuana giant Canopy Growth Corporation will enter the nascent U.S. hemp industry by building a massive farming and production center in southern New York, U.S. Senate Minority Leader Chuck Schumer (D-NY) announced on Monday.
Canopy has yet to finalize its plans for an exact location—a contract could be signed as soon as Monday, Schumer said—but the company could eventually support “up to 400 jobs” in hemp cultivation, processing and product manufacturing at what would be a “first of its kind” center for the just-legalized U.S. hemp industry, the senator said.
Once a key American crop—George Washington famously grew hemp at Mount Vernon, and there was a stand of hemp plants in northern Virginia where the Pentagon now stands—the U.S. now lags far behind other countries in hemp production, a result of the country’s broad outlawing of cannabis decades ago.
Eventually, Canopy plans to invest “between $100-$150 million” into a New York State-based industrial hemp farm, Schumer said, with other companies potentially drawn to the sector by such a prominent anchor business.
“Hemp is a very valuable product and a burgeoning crop here” in southern New York, said Schumer, offering a very brief remedial education in the plant for those present at a press conference he convened. “I’m not kidding when I say this, but hemp is everywhere.”
“This is going to be a major shot in the arm” for the area, he added.
“Hemp” is more of a legal than a botanical distinction. Under U.S. law, cannabis sativa with 0.3 percent or more THC is considered “marijuana” and falls under federal drug-control laws. Cannabis with less than 0.3 percent THC is considered industrial hemp.
Hemp has been legal to import and process, but until very recently, hemp cultivation was mostly illegal in the U.S.
That prohibition that ended when President Donald Trump signed the 2018 Farm Bill into law last month. The previous 2014 version of the Farm Bill created a pilot program for states that wished to legalize small-scale hemp cultivation as part of research programs.
Based on that success and on growing support for an end to cannabis prohibition nationwide, the 2018 Farm Bill legalized cultivation of hemp outright. Almost immediately, politicians began touting the crop’s potential as a miracle product and an economic boon with enthusiasm once reserved only for acolytes of hemp evangelist Jack Herer.
Senate Majority Leader Mitch McConnell, who championed the hemp legalization provisions, signed off on the final version of the Farm Bill with a hemp pen—but for now, Schumer, his Democratic counterpart, may have stolen the top Republican’s fire.
“I’ve always believed that states should be the laboratories of democracy,” he said. “I’ve been very eager to have the hemp industry grow in New York and the Southern Tier.”
Photo courtesy of Senate Democrats.
Alcohol Sales Aren’t Impacted By Marijuana Legalization, Trade Association Finds
Marijuana legalization hasn’t hurt alcohol sales in the years since legal markets were established in Colorado, Washington State and Oregon, according to a new study from an alcohol trade association.
The Distilled Spirits Council looked at alcohol tax and shipment data before and after legalization to determine whether cannabis reform impacted sales of spirits, beer or wine in legal states.
“Simply put, the data show there has been no impact on spirits sales from recreational marijuana legalization,” the council’s chief economist, David Ozgo, said in a press release on Thursday.
“We now have four years of retail recreational marijuana sales history in Colorado and Washington state, and three years in Oregon, and each of these markets remain robust for spirits sales,” he said. “We did this study because there is a lot of misinformation circulating about the impact of recreational marijuana legalization on distilled spirits and the wider alcohol market.”
Per capita spirits sales actually increased slightly in post-legalization years, which was consistent with national trends. Sales were up 7.6 percent in Colorado, 5.4 percent in Washington and 3.6 percent in Oregon.
The trade association also analyzed beer and wine sales during the same period. For beer, sales were down marginally, with drops of 3.6 percent in Colorado, 2.3 percent in Washington and 3.6 in Oregon. But again, that’s consistent with national trends, according to the study.
Wine sales were mixed across the three states: Up 3.2 percent in Colorado, down 3.1 percent in Washington and up .7 percent in Oregon.
The Distilled Spirits Council also used their analysis as an opportunity to plug their policy recommendations to lawmakers in states considering marijuana legalization. While the association has declined to take a position on whether to legalize, it shared a list of recommendations ranging from equitable taxes on cannabis and alcohol to THC content disclosure requirements.
There is at least one major alcohol group that is willing to support states’ right to legalize, though. The Wine & Spirits Wholesalers of America (WSWA) called for the end of federal marijuana prohibition last year and, in December, went so far as to host a briefing on cannabis policy for lawmakers and congressional staffers.
Reform advocates have questioned whether legal access to marijuana would adversely impact alcohol sales, with more people opting to consume cannabis over booze. There is some research that indicates the alcohol industry is being interrupted in medical marijuana states, but more data is needed.
Photo courtesy of Pixabay.