employers could (or should) enforce zero-tolerance drug policies against employees with medical cannabis prescriptions.

These debates culminated in the 2008 California Supreme Court decision stating that Proposition 251, known as the Compassionate Use Act of 1996, did not protect employees who have been tested positive for marijuana in their system, even with a prescription. Some legislators have tried to implement protections for employees since then, but for the most part, employers have final say.

But with the tides turning on perception of cannabis use and Proposition 64 going into effect statewide Jan. 1, 2018, making recreational marijuana legal in California, it is time once again for employers to re-evaluate their stances.

According to a report from the Society for Human Resource Management, many companies are revisiting and softening their zero-tolerance policies to take into consideration employees who safely consume marijuana during their private time.

Among the primary reasons for re-opening this dialogue is the fact that unemployment rates are low and use of cannabis is increasing across the board. This means qualified workers are in high demand. It has become increasingly difficult for employers to find and maintain a qualified pool of employees who fit the necessary criteria while also maintaining their zero tolerance policies.

Safety is of course still a top propriety, and jobs that must adhere to federal drug-free regulations (such as truck drivers and pilots) will not see any leniency anytime soon. However, there is a lot of room for discussion in low-risk career fields.

The SHRM report went on to talk about the flexibility that can exist with a more relaxed drug policy. Employers can still test prospective employees and take a firm approach when needed, but tailor their enforcement to match the demands of the job in question.

In addition to widening the pool of potential job candidates, a more relaxed drug policy in the workplace can help maintain the current base of talent. Many establishments have chosen to treat marijuana use in a similar fashion to alcohol. It should not be used on the work site, nor should it be used in a manner that it impairs job performance. Otherwise it is not an issue.

Easing up on cannabis policies would not protect an employee who is impaired on the job and cannot perform their duties. If an incident occurs at work and drug use is suspected, an employer can require a drug test and carry out a punishment, even if their marijuana policy is lax. Not dealing with such violations opens the business up to liability issues and workers’ compensation claims.

Our Orange County marijuana lawyers are eager to see more employers embrace a policy that can co-exist with statewide marijuana legalization and work more closely with employees who desire to use cannabis, both medical and recreational, in a safe and responsible manner. We know that cooperation among businesses, legislators, and citizens alike is the key to marijuana legalization in California being successful, accessible, and safe for all.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Rethinking Zero Tolerance on Drugs in the Workplace, Dec. 5, 2017, by Steve Bates, Society for Human Resource Management

More Blog Entries:

Workplace Prohibitions on Marijuana Still in Effect Despite Legalization, Nov. 23, 2016, Cannabis Law Group

Because of the federal civil asset forfeiture program, which allows the U.S. Justice Department to seize assets of any real property used to manufacture or distribute drugs that are illegal under federal law, the typical boiler plate lease won’t cut it. That’s why in many cases, property leases that involve cannabis businesses use something known as an “escape clause,” for instances when there is federal intervention or enforcement action. This can help protect the property owner, but it’s likely to end – or at least halt – the marijuana business indefinitely, likely costing a great deal of money.

We must now also consider the recently-passed Medicinal and Adult Use Cannabis Regulation Safety Act (MAUCRSA). Structuring the business – and the commercial lease agreement – according to these provisions can help safeguard your financial investment and livelihood.

Our Orange County marijuana attorneys are committed to helping new cannabis businesses formulate a workable business model that will help them avoid some of the most common legal headaches – including as it relates to the lease.

Some considerations you’ll want to weigh:

• Landlord ownership in tenant marijuana business. Anyone who buys and sells shares in a privately-owned cannabis company could potentially trigger either state or federal securities laws, which could turn into a regulatory issue under the state’s licensing program for marijuana. You’ll want to keep this in mind if you’re asked about accepting ownership of shares from the tenant instead of rent. MAUCRSA identifies an “owner” as someone with 20 percent or more ownership in the licensed company, or any person or who exercises any degree of management, control or direction of the company. If a cannabis business wants to hang on to its business license, all “owners” must have background checks. If there is any alteration of control or ownership, it could jeopardize the business.
• Multi-tenant cultivation. It’s becoming increasingly common for “cannabis parks” to crop up around California. However, it’s unclear whether they’ll be allowed to stay. The new law indicates only one licensee or applicant is allowed to control the premises. What’s not certain yet is if state regulators will give the green light to licensees to open up several “premises” on a single parcel of land. So if there are multiple tenants, there could be potential problems.
• Profit sharing. Many commercial leases for ordinary tenants include a provision that tenant pay a percentage of profits in addition to the rent. However, as mentioned earlier, this type of arrangement could cause headaches in terms of landlord liability because of the de facto designation as an owner – particularly if the profit is equivalent to 20 percent or more.
• Considerations of local law. California has long been a patchwork of laws when it comes to marijuana regulation. Some have very stringent restrictions, and others don’t have any at all. If there is some type of conditional use permit or another type of local approval required, your marijuana lawyer can help you sort this out.

In addition to these, there are also concerns with security, access and future build-outs. Consulting with an experienced attorney specializing in cannabis law can help you avoid some of these common pitfalls in this ever-evolving area of law.

Specifically, they want to start growing marijuana and hemp. They already have the land. They have the skill. They have most of the tools. They argue the best people to grow and cultivate legal marijuana are the people whose families have been farming the region for the better part of the last century.

Unfortunately, their hopes are counter to what the county’s Board of Supervisors may have in mind. The county is looking to possibly outlaw local marijuana cultivation, or else leave it solely up to licensed medical marijuana dispensaries. Both of these approaches cut independent farmers out of this equation entirely.

The State of California recently passed to laws that map out a legal path for outdoor farming of commercial cannabis. State regulators are scheduled to begin doling out licenses to cultivate and distribute recreational marijuana starting in January 2018. These new laws – the Adult Use of Marijuana Act passed in November and the Medical Cannabis Regulation Safety Act of 2015 – require that farms first receive approval for zoning from their local governing body before they can apply for a marijuana license from the state. If a farm doesn’t have a local permit, they can’t get permission from the state to grow the drug, which is imperative if they want to stay on the right side of the law and avoid any federal intervention. Abiding by the state guidelines is the best protection one may have to sidestep federal sanctions, given that the drug still has a Schedule I designation from the U.S. Drug Enforcement Administration.

The process of getting local approval, though, is mired in bureaucracy and local politics. As of right now, no communities in the San Diego region at least have granted permission for an outdoor cannabis farm. A number of cities outside of that region are scrambling to jump on the bandwagon, recognizing the potential gain in the estimated $7 billion industry.

Support of marijuana farming is one of the best ways for communities to reap the benefits without worrying about some of the other risks that can be involved. Farmers are typically discrete. Their operations are run cleanly and their sales model is business-to-business, which means there aren’t any direct sales to the general public. Perhaps the most attractive element of it is that it garners tens of millions of dollars for local communities in state and local taxes.

For sure, farmers see profits, but there are benefits to the entire community by supporting their endeavors. It’s expected that by 2020, marijuana sales in California will exceed $7 billion, which means there is $1 billion in annual tax and licensing fees that are at stake for the public. Those communities that support legal marijuana are going to be able to take home a larger slice of that pie – for public safety, for schools and other critical services.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Cannabis farmers seek legal way to grow, Jan. 11, 2017, By Anthony Wagner & Micah Anderson, San Diego Union Tribune

More Blog Entries:

“Where Can I Smoke Pot?” and Other Prop. 64 Questions, Dec. 30, 2016, L.A. Marijuana Lawyer Blog