On November 20, 2019, the House Judiciary Committee not surprisingly approved a bill that would decriminalize cannabis on a nationwide scale. The Marijuana Opportunity, Reinvestment and Expungement Act of 2019 – or MORE Act – passed with what some people are calling a landslide vote of 24-10, with two Republicans – Representatives Matt Gaetz (R-FL) and Tom McClintock (R-CA) – crossing party lines to join in supporting the bill. This vote marks the first time in history a congressional committee has affirmatively approved to end federal cannabis prohibition. The committee markup of the MORE Act is historical in and of itself, as it represents the first debate that was not centered on whether cannabis prohibition should be abolished but, instead, focused on implementation of a policy that would ultimately accomplish cannabis legalization.
The MORE Act would remove cannabis from the list of Schedule 1 controlled substances as identified in the Controlled Substances Act. The MORE Act would also: (i) allow states to set their own cannabis policy, eliminating federal intervention; (ii) require federal courts to expunge prior convictions for offenses related to cannabis; and (iii) establish a 5% tax on cannabis sales to establish a trust fund to reinvest in communities disproportionately impacted by the “war on drugs” and marijuana.
Supporters of the bill argue that the MORE Act would result in significant policy change that would, among other things, create a pathway for resentencing those incarcerated on cannabis-related offenses, protect immigrants from being denied citizenship over cannabis use, and prevent federal agencies from denying public benefits (such as housing) or security clearance due to a person’s past or current legal cannabis use.
Historically, the debate on cannabis has generally followed two tracks. The MORE Act was no different. The Republican committee members argued that the bill was rushed and should be subject to additional hearings, while the Democratic lawmakers countered that the debate on cannabis has been raging since the 1970s and the time is now to reverse decades-long harms incurred enforcing strict prohibition. It stands to reason that the legislation, which House Speaker Nancy Pelosi supports, has a high chance of approval in the full House where Democrats maintain control with 234 seats. However, the bill will face a tougher battle in the Republican-controlled Senate, where Majority Leader Mitch
McConnell openly opposes cannabis legalization.
Senate passage will likely depend on compromises that the Democrats are willing to make. It is also important to note that prior to a vote on the House floor, several committees could claim jurisdiction to consider the bill first, including the House Energy and Commerce Committee. It is possible the bill will be further amended and possibly delayed before reaching the House floor.
Admittedly, some Republican committee members openly recognize that cannabis prohibition is no longer workable, and that federal law should change, regardless of personal opinions on marijuana. These representatives pushed for the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act – an alternative bipartisan cannabis bill that does not contain any social equity elements or formally remove cannabis from the Controlled Substances Act.
Instead, the STATES Act largely leaves cannabis policy up to the states. There is a good argument to be made that this “scaled-down approach” would have a better chance of Senate approval. MORE Act supporters counter that, because the STATES Act does not de-schedule pot, it does not sufficiently address key issues including banking and veterans’ access. The House Judiciary Committee’s approval comes two months after legislation that would protect banks that serve cannabis businesses in states where the substance is legal.
A Pennsylvania medical marijuana lawsuit may someday provide guidance to employers on this issue. On October 10, 2019, Derek Gsell of Moon Township, Pennsylvania filed a lawsuit against a Pennsylvania electric company (the “Company”) in the Court of Common Pleas of Allegheny County, Pennsylvania, docketed as No. GD-19-014418. Mr. Gsell alleges that the Company improperly rescinded a job offer after he tested positive for THC (the active ingredient in marijuana). As he informed the Company, Mr. Gsell possesses a Pennsylvania medical marijuana card, which allows him to legally purchase and use marijuana for medical purposes.
According to the complaint, the Company offered Mr. Gsell employment in August 2019, however, the offer was “contingent upon successful completion of a criminal background check, reference check, and pre-employment drug screen.” Mr. Gsell underwent a pre-employment hair follicle drug test and he was informed that he had “failed” the test due to the detection of THC. The complaint states that written correspondence from the Company informed Mr. Gsell that the job offer was rescinded, and the position was “no longer available” due to his positive drug screening test results.
In his complaint, Mr. Gsell claims that the Company acted with “malice or reckless indifference” to his rights under the Pennsylvania Medical Marijuana Act (PMMA), which established the state’s medical marijuana program in 2016. Mr. Gsell alleges that his job offer was rescinded solely because he was certified to use medical marijuana, noting that he did not seek to use medical marijuana on the Company’s property or to be under the influence of marijuana while at work.
The PMMA permits the use and possession of medical marijuana in authorized forms by patients with a practitioner’s certificate who suffer from a serious medical condition. Cannabis possession is lawful for patients and caregivers who have a valid identification card. The Act provides protections for employees certified to use medical marijuana and, in particular, it prohibits employers from discriminating or taking an adverse action against an employee “solely on the basis of the employee’s status as an individual who is certified to use medical marijuana.”
Given the limited issues presented in Mr. Gsell’s one-count complaint, this lawsuit will likely be a good test for enforcing an employee’s (or a prospective employee’s) rights under the PMMA. The Company has not yet filed a response to the complaint. I will keep you informed as to the status of this case as that information is available. Until then, as always, “Drive Safe – Drive Smart!” I would also like to wish my readers Happy New Year!!