Today, the Philadelphia Inquirer published an excellent piece about local law firms that have embraced the legal cannabis industry, despite some of the risks and uncertainty inherent in the business for both lawyers and entrepreneurs. The article explains how important lawyers are for emerging cannabis businesses, and showcases some of the firms on the forefront of Pennsylvania’s budding industry.

“Lawyers bullish on cannabis despite risk” discusses Fox Rothschild’s cannabis practice and quotes my colleague Josh Horn, Co-Chair of our practice group. To read more, check out the article online or in today’s print edition of the Inquirer.

A few weeks ago, I blogged about the establishment of the Pennsylvania Medical Marijuana Program’s Practitioner Registry. As I noted there, having doctors registered and approved to certify patients as medical marijuana cardholders is critical for the success of Pennsylvania’s program. In the Department of Health’s Press Release announcing the Registry, the DOH noted that it surveyed close to 200 doctors, and 75% of them indicated they would register for the Program.

According to Dr. Rachel Levine, Pennsylvania’s Physician General and the Acting Secretary of Health, those initial estimates appear to be accurate. In an announcement made via Twitter, Dr. Levine stated:

It is yet to be seen whether all of these doctors will complete the process (including the required training), but it is a positive sign for patients and business owners looking forward to the full implementation of Pennsylvania’s program in 2018.

As always, stay tuned…


Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.

Yesterday, U.S. Senator Cory Booker (D-NJ) introduced the Marijuana Justice Act of 2017.  The bill, which Senator Booker first announced on Twitter and then described more fully on Facebook Live, aims to end the federal prohibition on cannabis with a multi-faceted approach.  First, the bill seeks to amend the Controlled Substances Act to declassify marijuana as a controlled substance under Schedule I of that Act.  Presently, marijuana is in the same category as heroin.

U.S. Capitol Building
Copyright: mesutdogan / 123RF Stock Photo

Although Senator Booker describes the legalization of marijuana at the federal level as “first and foremost,” he describes the declassification as “just the beginning.”  As written, the legislation is retroactive, requiring each federal court to issue an order expunging each conviction for a marijuana use or possession offense entered by the court before the date of enactment.  The bill would provide individuals presently incarcerated for marijuana-related offenses with an opportunity have their sentences reviewed as though the Act was in effect at the time the offense was committed.

In addition to the shift in federal law, the legislation incentivizes states to become more flexible in their criminalization of marijuana.  Under the proposed legislation, states would be ineligible for certain funding if they disproportionately arrest or incarcerate “low-income individuals” or “minority individuals,” as those terms are defined in the bill, for marijuana-related offenses.

Finally, the bill creates a “Community Investment Fund” of $500 million for communities that Senator Booker describes as having been “disproportionately impacted” by the enforcement of current laws.  Senator Booker would have the community investment fund available to finance job training, reentry services, expenses related to expungement of marijuana-related convictions, community centers, and libraries.

Although the bill has been described as a “long shot” in the Republican-controlled Congress, given the ever-increasing presence of the legal cannabis industry, it is one worth following.  You can learn more about the bill in the press release on Senator Booker’s website, and watch the Facebook Live video of Senator Booker discussing the bill:

In a July 26, 2017 Press Release, the Pennsylvania Department of Health announced the opening of its Practitioner Registry. This marks the next critical step in implementing Pennsylvania’s Medical Marijuana Program, which the DOH expects to be fully operational by 2018. Physicians can find out more about the Medical Marijuana Program here and complete the Registry here.

Medical marijuana in jar lying on prescription form
Copyright: megaflopp / 123RF Stock Photo

Last month, the DOH released final Regulations for Physicians and is now officially soliciting doctors to participate in the program. The role of physicians is essential for patients who wish to use medical marijuana, as Pennsylvania law requires every patient to receive a “Certification” from a licensed practitioner that the patient has a “serious medical condition” and that the use of medical marijuana would benefit the patient. See 35 P.S. § 10231.403.

Under the current Regulations, the registry will be publicly available and will include each practitioner’s name, business address, and medical credentials. According to the Press Release, the DOH, “surveyed physicians and found that of the 191 that participated, 75 percent said they would register with the program.”

Now the hope for patients, grower/processors, and dispensaries is that these physicians follow through on the registration and complete the puzzle necessary to move the program forward. Stay tuned here for more updates!


Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.

 

Yesterday, I blogged about the recent decision from the Massachusetts Supreme Court, Barbuto v. Advantage Sales and Marketing, in which the Court held that an employee could pursue her claims for disability discrimination after she was terminated for testing positive for marijuana.

Over at Fox’s Employment Discrimination Report blog, my colleague Justin Schwam has further analysis on the decision. Check out Justin’s post here.


Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.

In a decision awaited by many in the industry, the Massachusetts Supreme Judicial Court ruled that a licensed medical marijuana user who was fired after testing positive for marijuana can proceed with claims under the state’s “handicap discrimination” statute. The case is Cristina Barbuto v. Advantage Sales and Marketing and the Court’s opinion was issued on July 17, 2017.

After accepting a job offer from Advantage Sales and Marketing, Barbuto was told she would be required to undergo a drug test. Barbuto, who was a licensed medical marijuana user in Massachusetts and used the drug to treat Crohn’s disease, informed her employer that she was a licensed user and would test positive on the test. She also informed her employer that she did not use the drug daily and would not consume it before work.

Several months later, Barbuto was informed that she was being terminated because she tested positive for marijuana on a drug test. Barbuto filed suit, alleging that her termination violated Massachusetts’ medical marijuana statute, the state’s disability discrimination law, and public policy. Several of the plaintiff’s claims—including disability discrimination and wrongful termination—were dismissed and the plaintiff appealed.

Cannabis and the law
Copyright: jirkaejc / 123RF Stock Photo

The Massachusetts Supreme Court found that the Barbuto was a “handicapped person” under the state’s disability statute, and that her use of medical marijuana recommended by her doctor was a “reasonable accommodation,” thus finding that she stated a prima facie case of discrimination. And the court denied the defendant’s arguments that allowing Barbuto to use marijuana was per se unreasonable, because marijuana was illegal under federal law, as well as the argument that allowing Barbuto to use marijuana posed an “undue hardship,” both of which are defenses under the statute. Therefore, these claims will proceed in the trial court.

However, the court affirmed the dismissal of other claims by Barbuto, including her claim under the state medical marijuana statute. The court found that the statute did not create a private right of action, and found there was not a sufficient basis to imply such a right. This ruling contrasts with a similar recent case from Rhode Island (which I blogged about yesterday) where the state court there implied a private cause of action under the state medical marijuana statute.

The main takeaway from this case is that – regardless of the provisions of your state medical marijuana statute or the fact that marijuana use is still illegal under federal law – is that employers should engage in an interactive process with employees who are licensed medical marijuana users before taking any adverse employment actions. Furthermore, it is always critical to document such a process and, where applicable, to tie the employment decision to factors (e.g., safety and ability to complete the job) other than simply stating that the employee is a marijuana user.

For more tips for employers, check out my post from yesterday.


Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.

In one of the first “employee friendly” decisions on this issue, a Rhode Island state court granted summary judgment to a plaintiff job applicant who sued for employment discrimination on the basis of her medical marijuana use. After the plaintiff disclosed as part of the application process that she was a medical marijuana user and would not pass the required pre-employment drug test, the company did not hire her and she filed suit. The case is Callaghan v. Darlington Fabrics Corp.

via 123RF; Copyright : captainvector 

The trial court made several important holdings that could guide other courts examining this issue:

  1. The court first held that Rhode Island’s medical marijuana law, the Hawkins-Slater Act, did provide a private right of action for individuals licensed under the Act, although the Act does not specifically provide for a private cause of action. The court reasoned that, without implying a right of action, the provisions protecting users of medical marijuana would have no effect.
  2. The court held that Rhode Island state law was not preempted by federal law, which prohibits the possession and use of marijuana. In doing so, the Court referenced legislation by Congress which prohibits the Department of Justice from using funds to prevent states from, “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” (Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 537).
  3. The Hawkins-Slater Act prohibits an employer from taking an adverse employment action against an employee, “solely for…her status as a cardholder.” In examining the facts, the court found that the employer’s stated reason for refusing to hire–that the plaintiff could not pass a drug test–constituted a violation of this provision.
  4. Lastly, the Court found that the employer’s action constituted a violation of the Rhode Island Civil Rights Act, which prohibits (among other things) disability discrimination.

The decision has since been appealed by the employer, and employment litigators like myself will be eager to see how the Rhode Island Supreme Court views these issues. While this decision is one of the first to find that federal law is preempted and potentially allowing medical marijuana use by employees, all employers should take lessons from this decision.

First, employers should examine their hiring and adverse action decisions to ensure they have a basis other than an employee’s status as a lawful user of cannabis in their state. Next, in considering the ADA and similar state laws, employers should ensure that it ties its decision to the hardship in accommodating the employee, the employee’s inability to complete the job due to their condition, and/or a decline in the employee’s performance. It would also be wise to engage in an initial interactive process with the employee to determine whether it is feasible to make accommodations for the employee to lawfully use cannabis away from the workplace and still perform their job duties.

As more and more states (including my home state, Pennsylvania) implement medical marijuana programs, employers will be faced these difficult decisions and should look to their counselors and the approaches of other states to determine best approach.


Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.

As a follow up to my post on the City of Boynton Beach having its regulations overturned by Florida state law, other Florida municipalities are debating medical marijuana dispensaries.

Those adopting or extending moratoriums on dispensaries:

  • Marathon City, located in the Keys, has extended its moratorium for another 180 days.
  • Winter Garden, located near Orlando, recently voted in favor of a moratorium.
  • Collier County has also imposed a county-wide moratorium through the end of 2017.
  • Coral Gables, located near Miami, has also voted to impose a ban on dispensaries.
  • City of Sarasota, located south of Tampa, imposed a 60 day moratorium.

Miami Beach is investigating a creative workaround to impose some local control on dispensaries.  Miami Beach is looking into changing the zoning rules for pharmacies within their borders since municipalities are required to regulate dispensaries as they do pharmacies.

Meanwhile, the first dispensary in the City of Jacksonville, Florida recently opened its doors.  Tallahassee, the capital of Florida, also recently had its first dispensary open.

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Dori K. Stibolt is a West Palm Beach, Florida based partner with the law firm of Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

The City of Boynton Beach, Florida wanted to be ready for the implementation of Amendment 2 (medical marijuana) so they set up their own limits on dispensaries that included the following:

  • One dispensary per 67,000 residents;
  • Location was limited to one part of town the community commercial district;
  • No drive-throughs;
  • Limited hours.

Boynton has now learned that the new state law overrides their attempt at local control.  While cities can impose a short moratorium and control minor details regarding dispensaries they cannot impose the location restrictions presently on their books if they permit dispensaries.  Rather medical marijuana dispensaries must be treated as a municipality treats a pharmacy for zoning purposes.  Alternatively, under the state law cities can impose outright bans on medical marijuana dispensaries.

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Dori K. Stibolt is a West Palm Beach, Florida based partner with the law firm of Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.