President-elect Joe Biden’s Inauguration is happening this week amid a pandemic, security threats, and tension between the shifting administrations. Here’s what the extraordinary presidential term will look like for the cannabis industry, there’s going to be a lot happening!
President-elect Joe Biden supports marijuana decriminalization, but efforts to legalize cannabis consumption are likely to continue at the state level for now. In 2021, employers will need to review their policies and ensure that they comply with evolving marijuana laws, particularly those covering medical marijuana patients.
There’s a lot of speculation about whether the new administration will push to legalize marijuana, but more than likely federal legalization is not likely to happen anytime soon. At the federal level, marijuana is listed as a Schedule I drug under the Controlled Substances Act, which means it is deemed to have no medical value and a high potential for abuse.
The executive branch can reschedule cannabis, but this would have a limited effect. Dispensaries may gain some tax advantages, but recreational use would remain illegal. De-scheduling or legalizing marijuana would take congressional action.
Although federal changes may come slowly, employers can expect to see speedier actions at the state level. Even states that have already legalized medical marijuana use are expanding their laws to cover more reasons for use and ways to use cannabis (such as smoking and vaping).
As more states legalize marijuana use, companies with operations across multiple states will be forced to re-evaluate their workplace policies, as well as whether it is still practical to continue spending resources on drug testing.
Federal Level Uncertainty
It is noted that the Black Lives Matter movement has emphasized the social justice aspects of decriminalizing cannabis and the effect that its Schedule I status has on certain ethnic groups and impoverished areas.
Hopefully, lawmakers will consider legislation to legalize marijuana sometime during the Biden administration. However, there are so many other more pressing issues to be addressed during 2021 that it is difficult to say when that might happen.
Biden and Vice President-elect Kamala Harris have pledged to decriminalize marijuana. “Under a Biden-Harris administration, we will decriminalize the use of marijuana and automatically expunge all marijuana-use convictions and end incarceration for drug use alone,” Harris said during an ABC virtual town hall on Sept. 14, 2020.
Harris supports the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which the U.S. House of Representatives passed on Dec. 4, 2020. The act would de-schedule marijuana, remove criminal sanctions, and provide some relief for past convictions.
Under the MORE Act, states would still regulate cannabis. Although many Democrats support more-lenient marijuana laws, not all House Democrats voted in favor of the MORE Act. Six (6) Democrats voted against it so even with a Democrat majority, there’s no guarantee that the bill will pass.
Contentious issues also may prove difficult to pass in the Senate, which is split 50-50 between Democrats and Republicans. Harris will cast the tie-breaking vote when the Senate is divided. Congress is more likely to reduce the designation of marijuana from a Schedule I to a Schedule II drug.
State Laws Focused
State legalization efforts will continue. In the last election, voters in five (5) states approved marijuana laws. In Arizona, Montana, and New Jersey – where medicinal use is already permitted – voters approved recreational use. Mississippi voters decided to legalize medical marijuana in the state, and South Dakota voters agreed to legalize both recreational and medical use.
Those laws will take effect in 2021 and thirty-five (35) states have now approved medical use, and fifteen (15) of those states and Washington, D.C., also have approved recreational use.
Employers need to be aware of how each applicable statute impacts the workplace. Many state medical marijuana laws prohibit employment discrimination against applicants and employees who use medical marijuana, and we can expect to see the courts continuing the trend to protect the rights of medical marijuana users in the workplace.
While the list of states with recreational marijuana laws is growing, these laws do not contain employment protections for applicants and employees. Although employers may need to revise their drug-testing and accommodation policies, no state law requires employers to tolerate on-the-job cannabis use or intoxication.
In 2021, it will be really important for employers to keep their eye on the case law, particularly as courts continue to interpret employee protections under medical marijuana statutes.
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