In our May 2022 “Office Hour with SKC”, Sarah Krom hosted a panel discussion on the legalization of recreational marijuana in New Jersey and the impact to businesses. In the first part of this discussion, Keya Denner, Attorney and Co-Chair of Ford Harrison’s Cannabis Law Practice, reviewed the differences between federal and state law in regard to cannabis in the workplace.
Federal vs State Laws
On April 21, 2022 adult recreational marijuana became available for purchase at 13 dispensaries across the state of New Jersey - without a medical card. What impact does this have on NJ businesses? The answer is complicated!
For businesses who are in states that have legalized adult use cannabis, or have a medical marijuana law, you might think, how is this possible when cannabis is still considered illegal under federal law?
Well, yes, it is still illegal under federal law. Marijuana is a Schedule 1 drug which means it falls under the Controlled Substances Act. It supposedly has no recognized medicinal value and it has a high potential for abuse.
However, this doesn't mean that things have not been progressing on the federal side. Since 2018, they have been chipping away at marijuana's Schedule 1 classification and have recognized first and foremost, that marijuana does have some medicinal value. In 2018 the FDA approved, for the first time, a drug called Epidiolex which was used to treat epilepsy in children. That drug was important because it was the first drug approved by the FDA which was derived from cannabis.
On the state side, starting around 2011/2012 with the Obama administration, we started to see more states passing medical marijuana laws and adult use cannabis laws. The federal government, aside from the Attorney General and the Drug Enforcement Agency, remain relatively "hands off".
Federally, they have been concentrating mainly on the drug dealers and businesses that are not following state law. If you get a license and you are in a state that allows it, the federal government's policy has been hands off. The bottom line is, as long as you are following your state law, the federal government is generally not going to enforce a cannabis law citing that it's a Schedule 1 drug.
36 states now have medical marijuana laws and 19 have recreational adult use laws. 18 of those states have protections for employees that use medical marijuana.