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With the spread of COVID-19 fears, states and cities nationwide
are in the process of issuing a variety of executive orders and
other ordinances shutting down businesses that are considered
“non-essential.” However, what is considered
“essential” differs by state and locality. Across
the board, these laws have included healthcare services as
“essential.” The question many have is whether marijuana
dispensaries will fall into this “essential”
category.
New York:
At the time of publication, Governor Cuomo’s most recent
executive order remained pending. However, on March 18, 2020,
he announced that non-essential services will be forced to reduce
the number of employees reporting to work in person by 50
percent. As part of his announcement, he stated that
essential services included grocery stores, pharmacies, healthcare,
and shipping. At the same time, he voiced opposition to the
shelter-in-place plan floated by Mayor de Blasio.
In advance of the passage of any such Orders, New York state
health regulators issued guidance declaring licensed medical
cannabis businesses to be “essential” services as medical
providers. This would allow such dispensaries to remain open
if nonessential businesses are ordered to close because of
COVID-19. The guidance also strengthened safety and health
protocols for Registered Organizations in the Medical Marijuana
Program. These include:
Allowing Registered Organizations to dispense goods from the
doors of the facility provided that they maintain compliance with
all current laws, rules and regulations including but not limited
to dispensing on camera, checking the PMP as required and
validating registry ID cards.
Permitting Registered Organizations (who have been approved to
deliver medical marijuana products to the homes of registered
patients and designated caregivers) to expand delivery services
statewide without seeking the Department of Health’s prior
written approval. This directive is in place until April 16,
2020.
Issuing recommendations for delivery drivers, which include
wearing masks and gloves, sanitizing or washing hands after each
delivery, encouraging patients to use their own pens for signatures
/ sanitizing pens. It also recommending instituting
confirmation of receipt of delivery of medications through a phone
call, text or email in lieu of getting a signature, although this
confirmation should be documented and retrievable upon audit.
Encouraging businesses to have patients set up appointments in
order to avoid overcrowding in dispensaries.
Encouraging businesses to institute a variety of COVID-19
planning practices for issues with ill staff, supply chain
problems, and increased sanitation of facilities.
California:
As of 12:01am on Wednesday, March 18, 2020, thirteen California
counties are now subject to shelter in place orders requiring all
non-essential businesses to either operate remotely or close up
shop for 2-3 weeks to help curb the spread of coronavirus.
The orders provided lists of essential services that could remain
open, including grocery stores, pharmacies, gas stations, and
medical facilities. It left room, however, for interpretation
for many other businesses, including the cannabis
industry—which walks the line between medical and
recreational markets, and generates hundreds of millions of dollars
each year in state tax revenue.
Offering a slice of clarity, the City of San Francisco ruled on
March 17th that its numerous dispensaries would be allowed to
remain open under an “essential business” exception.
In doing so, the San Francisco Department of Public
Health stated that cannabis is an essential medicine and that
“[d]ispensaries can continue to operate as essential
businesses during this time, while practicing social distancing and
other public health recommendations.”
In addition to San Francisco, dispensaries in San Jose were also
deemed by the city to be essential providers of healthcare needs
and therefore exempt from the shelter in place orders, so long as
the dispensaries comply with social distancing requirements.
Santa Cruz County is allowing cannabis dispensaries to continue
operating via delivery or pickup only, with customers prohibited
from gathering in shops. Santa Clara County is allowing
dispensaries to operate as essential businesses for medical
purposes, but not recreational. Alameda County dispensaries
are reportedly still open for business despite the orders as
well.
Other States Deeming Cannabis “Essential” During
Business Closures
In addition to New York and California, several city and state
health departments have stated that medical marijuana dispensaries
are “essential” businesses, like pharmacies or grocery
stores, and are allowed to remain open. Specifically,
Michigan, Illinois, Massachusetts, and Washington State all issued
bulletins lessening the regulations on delivery and/or in-store
transactions in efforts to limit contact between patients and
vendors.
Michigan’s Marijuana Regulatory Agency will ultimately need
to approve all delivery methods used by retailers, but in the
interim, will temporarily permit delivery to customers and patients
whose current addresses do not match their state-issued
identifications. They will also allow dispensaries to make
curbside sales to their clientele.
The Illinois Department of Financial and Professional Regulation
is still prohibiting delivery to patients, but will allow medical
dispensaries to transact business “on the dispensary’s
property or on a public walkway or curb adjacent to the
dispensary.” Any recreational sales must still be made
indoors, but the dispensaries must do so in “limited access
areas” and comply with social distancing requirements.
Massachusetts’s Cannabis Control Commission recommended that
medical dispensaries offering delivery services consider expanding
service areas and to urge their patients to place larger orders to
limit the amount of human contact.
Washington state’s Liquor and Cannabis Board announced that
marijuana retailers are not required to close, so long as they
designate an employee or officer to establish best practices in
light of the virus. The Board is also working to identify
ways to help licensed businesses during this closure, specifically
by tweaking regulations to allow for curbside delivery.
Takeaways:
With the COVID-19 landscape continuing to change rapidly,
companies can stay up-to-date on COVID-19 developments by
clicking here to sign up for Seyfarth’s
daily digest.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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