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New York City Ban On Pre-Employment Marijuana Testing Takes Effect, But Not For All Workers

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As of Sunday, many New York City employers are no longer able to require pre-employment drug testing for marijuana as a part of the hiring process—though there are a series of exemptions to the policy, including some that are still being finalized.

The City Council approved the ban last year, and it was enacted without Mayor Bill de Blasio’s (D) signature. It stipulates that, generally speaking, companies in the city can’t conduct pre-employment tests for THC metabolites unless the position is safety sensitive.

What exactly constitutes such a position has been subject to debate. As originally written and passed, the bill included language carving out exceptions from the prohibition on testing for those applying to certain jobs such as police officers and people charged with supervising or caring for children, as well as positions “tied to a federal or state contract or grant.”

However, it also contains a provision that allowed the New York City Commission on Human Rights to expand the list of excepted jobs. And that’s what the body did last month with proposed regulations, which were open for public comment until April 27. The commission also held a virtual hearing on the issue on April 16.

Under the commission’s proposal, workers who use heavy machinery, spend a significant amount of time at a construction site, work with power or gas utility lines or use a motor vehicle on approximately a daily basis would still be subject to pre-employment drug testing for cannabis.

While those exemptions haven’t yet been finalized, the commission announced in a notice on Friday that “claims arising between May 10, 2020 and the date when the rules are finalized, the Commission will not be filing enforcement actions related to the above-listed positions.”

In other words, if a worker files a complaint that an employer required pre-employment drug testing for a position that fits a description under the commission’s proposed regulations, the body will not take enforcement action against the company even as those rules are still in the process of being finalized.

Reform advocates have widely celebrated the policy overall, applauding local lawmakers for taking steps to protect cannabis consumers against discrimination. But some—including the Marijuana Policy Project (MPP)—argue that the exemptions are excessively broad.

“MPP understands that the City Council decided to exclude safety sensitive positions. However, MPP believes the proposed rule goes [beyond] what is required by” the bill, DeVaughn Ward, senior legislative counsel at MPP, said in written testimony to the commission. “We are particularly concerned by the inclusion of a limitation for anyone who drives daily, which would impact large number of working class New York City residents.”

“Science has proven that cannabis can stay in one’s system up to a month after consumption. This means a positive test for marijuana does not prove one is impaired while at work,” he added. “MPP urges the Commission to reconsider the proposed rule and narrowly tailor the exceptions to those expressly required by” the original legislation.

New York City Public Advocate Jumaane Williams, who sponsored the legislation that created the ban, said he’s opposed to adding any exemptions to the law because he believes that “no individual should be tested for THC, and I stand firmly against any expansion of exemptions to Local Law 91.”

“Creating more exemptions and loopholes to this law will unjustifiably deter qualified employees from obtaining gainful employment,” he wrote. “Maintaining the original intent of the legislation, the City should be pushing to reduce the stigma around marijuana and working to restore justice for the millions of black and brown communities who have been the victims of marijuana criminalization and discrimination.”

Other groups expressed strong support for the commission’s list of additional exemptions to the testing ban.

The American Automobile Association (AAA) said the proposed rule would cover roadside technicians it employs, and they said approving the regulations would ensure public safety.

“AAA strongly believes maintaining pre-employment drug testing for emergency roadside technicians will ensure the safety of the public, our members and our roadside assistance employees,” the organization’s New York chapter said. “AAA currently employs 90 roadside technicians in New York City who are responsible for providing safe and reliable emergency service for disabled vehicles twenty-four hours per day and seven days a week, in every weather condition.”

A representative from Verizon also weighed in, stating that the the company’s “workforce of telecommunications technicians represent a substantial part of our embedded employee base that should be exempt from this rule.”

“Ensuring safety in these instances are of utmost importance and it is for that reason we respectfully request that telecommunications technicians be exempt,” Verizon said. “Understanding the need to keep our employees safe, and our infrastructure secure we believe these exceptions are imperative.”

The drug testing industry is, perhaps unsurprisingly, in favor of expanding the list of exemptions to the testing ban.

“Restricting an employer’s right to test for THC is the first step to prohibiting employers from all substance testing that puts accident, injury and fatality liability directly upon them,” the National Drug and Alcohol Screening Association (NDASA) said, adding that it would “recommend, on behalf of our membership and the employers we represent, that this City Commission consider allowing ANY and ALL employers to choose a Drug Free Workplace for all.”

“Without exempting all employers or offering the ability to opt-in or out of Local Law 91 then a burden will be put on the shoulders of employers that would prefer to provide safe work environments by forcing them to accept applicants that are using a known impairing substance,” NDASA said.

Quest Diagnostics said it “is a strong advocate for an employer’s right to drug test applicants and employees as a component of maintaining a safe workplace.” And while the drug testing company said it doesn’t take a position on marijuana legalization, it “believes that any law or ordinance legalizing the recreational use of cannabis should protect an employer’s right to maintain drug-free workforce policies for safety-sensitive employees.”

Of course, cannabis remains illegal for recreational use in New York despite efforts from Gov. Andrew Cuomo (D) and legislators to enact it through the state budget over the past two years. But the City Council did draft the testing ban with the expectations that marijuana would eventually become legal for adult use in the state.

A top New York lawmaker said that last month that she’s still hoping to get cannabis legalization passed this year despite challenges presented by the coronavirus outbreak.

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Virginia Has Sealed 64,000 Marijuana Distribution Charges Since Legalization Took Effect This Summer

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“These aren’t just numbers and there are families attached.”

By Ned Oliver, Virginia Mercury

Virginia has sealed records documenting more than 64,000 misdemeanor marijuana distribution charges since the state legalized the drug in July.

The figure came out Thursday during a meeting of the legislature’s Cannabis Oversight Commission.

Officials said the records were scrubbed from the state’s criminal record database, which is used by employers like school boards, state agencies and local governments to screen employees.

The state had already sealed 333,000 records detailing charges of simple possession last year after the state reduced the offense to a civil infraction on par with a traffic offense, said Shawn G. Talmadge, the Deputy Secretary of Public Safety and Homeland Security.

Lawmakers directed the state to expand that effort when they voted to broadly legalize recreational use of marijuana earlier this year.

The legislature also agreed to a broader expungement reform that will automatically seal other misdemeanor charges, including underage possession of alcohol, use of a fake ID, petit larceny, trespassing and disorderly conduct. Talmadge said those charges will remain in the system until the state finishes updating the software it uses to track criminal records.

“As of right now, the process is proceeding,” he said.

Members of the oversight commission also heard from two advocates who urged them to move fast to address people currently imprisoned for marijuana offenses—a category of people the legalization legislation passed this year did not address.

Chelsea Higgs Wise, the leader of the advocacy group Marijuana Justice, and Gracie Burger, with the Last Prisoner Project, said Department of Corrections data suggests there are currently 10 people being held solely on serious marijuana charges.

They said it remains unknown how many more are being held because of marijuana related probation violations.

“These aren’t just numbers and there are families attached,” Burger said.

This story was first published by Virginia Mercury,

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DEA Proposes Dramatic Increase In Marijuana And Psychedelic Production In 2022, Calling For 6,300 Percent More MDMA Alone

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The Drug Enforcement Administration (DEA) is proposing a dramatic increase in the legal production of marijuana and psychedelics like psilocybin, LSD, MDMA and DMT to be used in research next year.

In a notice scheduled to be published in the Federal Register on Monday, the agency said there’s been a “significant increase in the use of schedule I hallucinogenic controlled substances for research and clinical trial purposes,” and it wants authorized manufacturers to meet that growing demand.

DEA had already massively upped its proposed 2021 quota for cannabis and psilocybin last month, but now it’s calling for significantly larger quantities of research-grade marijuana and a broader array of psychedelics to be manufactured in 2022.

It wants to double the amount of marijuana extracts, psilocybin and psilocyn, quadruple mescaline and quintuple DMT. What especially stands out in the notice is MDMA. The agency is proposing an enormous 6,300 percent boost in the production of that drug—from just 50 grams in 2021 to 3,200 grams in the coming year—as research into its therapeutic potential continues to expand.

LSD would see a 1,150 percent increase, up to 500 grams of the potent psychedelic.

Marijuana itself would get a 60 percent boost under DEA’s proposal, up to 3.2 million grams in 2022 from the 2 million grams last year.

Here’s a visualization of the proposed quota increase from 2021 to 2022 for marijuana and cannabis extracts:

For all other THC, psilocybin, psilocyn and MDMA:

And for other psychedelic substances like LSD, mescaline and DMT:

DEA said in the Federal Register notice that it has been receiving and approving additional applications to “grow, synthesize, extract, and manufacture dosage forms containing specific schedule I hallucinogenic substances for clinical trial purposes” to achieve these ambitious quotas.

“DEA supports regulated research with schedule I controlled substances, as evidenced by increases proposed for 2022 as compared with aggregate production quotas for these substances in 2021,” the agency said, adding that it working “diligently” to process and approve marijuana manufacturers applications in particular, as there’s currently only one farm at the University of Mississippi that’s permitted to cultivate the plant for research.

“Based on the increase in research and clinical trial applications, DEA has proposed increases in 3,4- Methylenedioxyamphetamine (MDA), 3,4-Methylenedioxymethamphetamine (MDMA), 5-Methoxy-N,N-dimethyltryptamine, Dimethyltryptamine, Lysergic acid diethylamide (LSD), Marihuana, Marihuana Extract, Mescaline, Psilocybin, Psilocyn, and All Other Tetrahydrocannabinols to support manufacturing activities related to the increased level of research and clinical trials with these schedule I controlled substances.”

Here are the exact numbers for the proposed 2021 and 2022 quotas:

Substance 2021
2022 proposed
Marijuana 2,000,000 3,200,000
Marijuana extract 500,000 1,000,000
All other tetrahydrocannabinol 1,000 2,000
Psilocybin 1,500 3,000
Psilocyn 1,000 2,000
MDMA 50 3,200
LSD 40 500
Mescaline 25 100
DMT 50 250
5-MeO-DMT 35 550
MDA 55 200

A 30-day public comment period will be open after the notice is formally published on Monday.

It’s difficult to overstate just how significant the proposed 2022 increases are, but it’s certainly true that scientific and public interest in marijuana and psychedelics has rapidly increased, with early clinical trials signaling that such substances show significant therapeutic potential.

National Institute on Drug Abuse (NIDA) Director Nora Volkow told Marijuana Moment in a recent interview that she was encouraged by DEA’s previous proposed increase in drug production quota. She also said that studies demonstrating the therapeutic benefits of psychedelics could be leading more people to experiment with substances like psilocybin.

Advocates and experts remain frustrated that these plants and fungi remain in the strictest federal drug category in the first place, especially considering the existing research that shows their medical value for certain conditions.

A federal appeals court in August dismissed a petition to require the DEA to reevaluate cannabis’s scheduling under the Controlled Substances Act. However, one judge did say in a concurring opinion that the agency may soon be forced to consider a policy change anyway based on a misinterpretation of the therapeutic value of marijuana.

Separately, the Washington State attorney general’s office and lawyers representing cancer patients recently urged a federal appeals panel to push for a DEA policy change to allow people in end-of-life care to access psilocybin under state and federal right-to-try laws.

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Image element courtesy of Kristie Gianopulos.

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Supreme Court Won’t Hear Case On Legalizing Safe Drug Consumption Sites, But Activists Are Undeterred

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The U.S. Supreme Court (SCOTUS) has rejected a request to hear a case on the legality of establishing safe injection sites where people can use illicit drugs in a medically supervised environment.

The justices announced on Tuesday that they decided against taking up the case raised by the nonprofit Safehouse, despite the pleas of attorneys general from 10 states and D.C. who recently filed amici briefs urging the court’s involvement.

Representatives from 14 cities and counties, as well as the mayor of Philadelphia, which is at the center of the current case, also filed briefs in support of the case in recent days.

Safehouse was set to launch a safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration. It filed a petition with the nation’s highest court in August to hear the case.

But while the Supreme Court declined to take action—and the Biden administration passed up its voluntary opportunity to weigh in at this stage, which may well have influenced the justices’ decision—activists say the battle will continue at a lower federal court level, where the administration will have to file briefs revealing its position on the issue.

“We were disappointed that the government chose not to respond to our petition,” Safehouse Vice President Ronda Goldfein told Filter. “They said, ‘We’re going to waive our right to respond,’ [and] the Supreme Court declined to review our case. Ordinarily that sounds like the end of the road—but in our case we are still pursuing our claims in a different venue.”

That venue will be the the federal district court in Philadelphia, where activists plan to submit multiple arguments related to religious freedom and interstate commerce protections. The Biden administration will be compelled to file a response in that court by November 5.

“If they don’t respond, they lose,” Goldfein said.

A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—previously filed a brief urging the Supreme Court to take up Safehouse’s safe injection case.

Fair and Justice Prosecution, the group that coordinated the amicus brief, also organized a tour of Portugal for 20 top prosecutors in 2019 so they could learn about the successful implementation of the country’s drug decriminalization law.

If the Supreme Court were to have taken the case and rule in favor of Safehouse, it could have emboldened advocates and lawmakers across the country to pursue the harm reduction policy.

The governor of Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs in a medically supervised environment. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.

Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.

A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until 2022.

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