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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.

Top Vermont Lawmaker Says Legal Marijuana Sales Bill Will Be Taken Up After Coronavirus Response

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Senator Files New Bill To Federally Legalize Marijuana And Regulate It Like Tobacco

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A Democratic senator filed a new bill to federally legalize marijuana on Thursday, creating yet another potential avenue through which Congress could enact the policy change.

This piece of legislation, sponsored by Sen. Tina Smith (D-MN), would remove cannabis from the Controlled Substances Act and direct several federal agencies to develop regulations for the plant.

Titled the “Substance Regulation and Safety Act,” the bill would deschedule cannabis, require the U.S. Department of Health and Human Services (HHS) to develop rules that treat marijuana the same as tobacco, create a national research institute to evaluate the risks and benefits of cannabis, require the U.S. Department of Agriculture to impose quality control standards and mandate that the Department of Transportation study methods for detecting THC-impaired driving.

The descheduling provisions “are retroactive and shall apply to any offense committed, case pending, or conviction entered, and, in the case of a juvenile, any offense committed, case pending, or adjudication of juvenile delinquency entered, before, on, or after the date of the enactment of this Act,” the text of the bill states.

HHS would have to come up with a “national strategy to prevent youth use and abuse of cannabis, with specific attention to youth vaping of cannabis products.” Further, text of the legislation states that the department would be required to “regulate cannabis products in the same manner, and to the same extent,” as it does with tobacco.

That includes “applying all labeling and advertising requirements that apply to tobacco products under such Act to cannabis products.”

U.S. Customs and Border Protection would be tasked with working with other agencies to develop policies on allowing marijuana imports and exports.

The legislation further contains racial justice provisions. For example, HHS would have to consult with “consult with civil rights stakeholders” to determine “whether cannabis abuse prevention strategies and policies are likely to have racially disparate impacts” within 100 days of the bill’s enactment.

The Department of Transportation would similarly have to determine whether its impaired driving prevention policy “is likely to contribute to racially disparate impacts in the enforcement of traffic safety laws.”

Agencies charged with establishing these regulations would have one year following the bill’s enactment to finalize those rules.

A federal age requirement for marijuana sales would be set at 21 under the measure.

The short title of the bill as published on Congress’s website states that it would “decriminalize and reschedule cannabis.” However, the text of the legislation as introduced that was shared with Marijuana Moment says it would go beyond rescheduling by removing marijuana from the CSA entirely, a process known as descheduling. Representatives from Smith’s office did not immediately respond to a request for clarification.

This is the latest legalization bill to be introduced this Congress. In some ways, it appears to be a more modest reform compared to other pieces of legislation that reform advocates are backing such as the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, which includes provisions beyond rescheduling to reinvest in communities most impacted by the war on drugs.

Sources recently told Marijuana Moment there are plans in motion to get a House floor vote on that bill in September, though it’s prospects in the Republican-controlled Senate are more dubious. It’s possible that this bill from Smith would be more palatable to GOP members given its more narrow focus.

“It’s terrific to see Senator Smith engage so substantively in the cannabis policy reform debate,” Justin Strekal, political director of NORML, told Marijuana Moment. “We at NORML look forward to propelling many aspects of the new legislation into the broader conversation on the future of federal regulations in regards to a post-prohibition America.”

The introduction of this legislation comes one day after the House approved a spending bill amendment that would protect all state, territory and tribal cannabis programs from federal intervention.

While Smith has only been in Congress since 2018, after she replaced Sen. Al Franken (D-MN) following his resignation, she has signed onto various pieces of cannabis reform legislation as a cosponsor, and she’s made several comments in favor of reform.

For example, the senator attached her name to bills to protect banks that service state-legal marijuana businesses from being penalized from federal regulators and to legalize industrial hemp. She also cosponsored a resolution condemning “state-sanctioned extrajudicial killings” over drug crimes in the Philippines.

Smith also recently remarked racial disparities in drug enforcement in a Senate floor speech.

This bill is being introduced as Minnesota lawmakers push for state-level legalization, with a top legislator unveiling a comprehensive plan for legalizing cannabis for all adults 21 and older in May.

It also comes shortly after the Democratic National Committee rejected an amendment to adopt legalization as a 2020 party plank, with members opting instead to embrace more modest reforms. Advocates suspend that there may have been pressure for the panel not to formally embrace a policy change that is opposed to by presumptive Democratic presidential nominee Joe Biden.

Read the new Senate marijuana legalization below: 

Substance Regulation and Sa… by Marijuana Moment on Scribd

Photo courtesy of WeedPornDaily.

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Louisiana Law Allowing Medical Marijuana For Any Debilitating Condition To Take Effect

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A new Louisiana law significantly expanding the state’s medical marijuana program officially takes effect on Saturday.

This comes two months after the legislature approved the bill and Gov. John Bel Edwards (D) signed it. The legislation will allow physicians to recommend medical cannabis to patients for any debilitating condition that they deem fit instead of from the limited list of maladies that’s used under current law.

Other new laws coming into force this weekend include ones to set hemp and CBD regulations, shield financial institutions that service marijuana businesses from being penalized by state regulators and provide legal protections for doctors who recommend medical cannabis and medical facilities that have marijuana patients in their care.

The medical marijuana expansion bill as introduced by its sponsor, Rep. Larry Bagley (R), initially only would have added traumatic brain injuries and concussions but was amended in committee to include several other conditions as well as language stipulating that cannabis can be recommended for any malady that a physician “considers debilitating to an individual patient.”

“I’m excited. I’m expecting it to be a pretty big day,” Bagley told Marijuana Moment in a phone interview on Thursday. “All the people out here tell me all the wonderful stories about how they were in terrible pain and then they took it and then they’ve gotten away from the pain.”

The lawmaker is particularly hopeful that providing this expanded access will help curb the opioid epidemic by providing patients with a safer alternative to prescription painkillers.

“The medical marijuana is not [like opioids] because not not addictive. No one’s ever died from it,” he said.

“I’m hopeful I think this is gonna be a big day. I’m really expecting this to be a game changer for Louisiana, for the state, for the pharmacies that are doing this,” he said. “I think it’s going to be a big moneymaker for state. At least I hope it is. And I think that everybody’s going to be really happy about it, but time will tell.”

Bagley had also introduced a House-passed bill to allow delivery services, but he voluntarily withdrew it from Senate committee consideration, telling Marijuana Moment at the time that he felt the debilitating condition bill would already allow cannabis products to be delivered to patients like other traditional pharmaceuticals.

The delivery bill would have required a government regulatory body to develop “procedures and regulations relative to delivery of dispensed marijuana to patients by designated employees or agents of the pharmacy.”

It remains to be seen if regulators will agree with Bagley’s interpretation, as doctors are still prohibited from “prescribing” cannabis, and marijuana products are not dispensed through traditional pharmacies. But regulators did move to temporarily authorize delivery services during the coronavirus pandemic, so it’s possible they will be amenable to extending the allowance on a permanent basis.

State lawmakers also passed a resolution in June to create “a task force to study and make recommendations relative to the cannabis industry projected workforce demands.” Text of the legislation, which does not require gubernatorial action, states that “there is a need to study the workforce demands and the skills necessary to supply the cannabis industry with a capable and compete workforce, including physicians, nurse practitioners, nurses, and other healthcare practitioners.”

Nancy Pelosi Says Marijuana Is A ‘Therapy That Has Proven Successful’ Amid Coronavirus Bill Debate

Photo courtesy of WeedPornDaily.

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Nancy Pelosi Says Marijuana Is A ‘Therapy That Has Proven Successful’ Amid Coronavirus Bill Debate

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House Speaker Nancy Pelosi (D-CA) on Friday defended the decision to include marijuana banking protections in Democrats’ latest coronavirus relief bill.

The speaker was asked about various provisions of the legislation that Republicans had criticized as not germane to the health crisis, with a reporter citing the cannabis component in particular. Pelosi took issue with the suggestion and said there is a role for marijuana reform amid the pandemic.

“I don’t agree with you that cannabis is not related to this,” the top House Democrat said. “This is a therapy that has proven successful.”

It’s not clear whether the speaker was suggesting that marijuana has medical value for a coronavirus infection specifically or was more broadly referencing the plant’s therapeutic potential. The Food and Drug Administration has made clear that there’s currently no solid evidence that cannabinoids can treat COVID-19 and it’s warned companies that make that claim.

Several lawmakers have argued that the Secure and Fair Enforcement (SAFE) Banking Act is relevant to the health crisis for a different reason, as protecting financial institutions that service cannabis businesses would mean fewer cash exchanges at dispensaries, thus minimizing the spread of the virus.

Marijuana Moment previously exclusively reported that Pelosi—who said in 2018 that doctors should prescribe medical cannabis and yoga more often instead of prescription opioids—supported attaching the banking language to the House’s coronavirus package prior to the legislation’s introduction.

That said, Senate leadership unveiled their latest round of coronavirus relief legislation on Monday, and it does not include the SAFE Banking Act provisions. It remains to be seen whether bicameral negotiators will be able to get it in the final bill sent to the president’s desk.

Rep. Ed Perlmutter (D-CO) said in May that he felt there was a 50-50 chance the Senate would adopt it as part of their COVID-19 bill.

On Friday, House Minority Leader Kevin McCarthy (R-CA) took to Twitter to slam Pelosi’s latest cannabis comments.

“Hey Nancy, let’s focus on the pandemic. Not pot,” he said.

The Senate Republican Communications Center also chimed in.

“House Democrats are continuing to try and push unrelated COVID-19 wish-list items. All of them should be taken out,” the group tweeted.

Meanwhile, the standalone SAFE Banking Act has continued to sit in the Senate Banking Committee without action in the months since the House initially approved it.

Earlier this month, a bipartisan coalition of state treasurers sent a letter to congressional leaders, asking that they include marijuana banking protections in the next piece of coronavirus relief legislation.

In May, a bipartisan coalition of 34 state attorneys general similarly wrote to Congress to urge the passage of COVD-19 legislation containing cannabis banking provisions.

Pelosi’s latest comments come one day after the House approved an amendment to protect state, territory and tribal marijuana laws from federal interference.

House Votes To Protect State Marijuana Laws From Federal Interference

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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