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COVID-19 Brings About a Sea Change in Cannabis

Once a pariah, dispensaries are being deemed essential in many states

April 15, 2020 Photo

In March 2020, state after state issued “shelter in place” orders that required non-essential workers to stay home. Many of these emergency orders also listed the essential services that were permitted to stay open to provide food, prescriptions, and health care. Because states that have legalized medical marijuana recognize cannabis as essential medicine for many people, declaring cannabis licensees as “essential” is consistent with that mandate. And so, without fanfare or debate, cannabis dispensaries and the licensees who supply them have emerged in this post-COVID-19 era as essential as any other pharmacy on Main Street America.

While access to cannabis used for medicinal purpose varies greatly between the states, dispensaries have been allowed to operate so long as social distancing and anti-congregating measures are followed. Many states or local municipalities have further reduced barriers to access by permitting delivery and curbside pickup. As a result of continued access and anxious times, cannabis dispensaries and delivery licensees are reporting large boosts in sales.

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The following is a breakdown of the jurisdictions hardest hit by COVID-19 and how they have included cannabis dispensaries in their crisis management response plans:

New York

On March 19, 2020, Governor Andrew Cuomo issued an executive order requiring all businesses to use telecommuting or work-from-home procedures to the maximum extent possible, with the exception of essential businesses. The New York State Department of Health (NYSDH) issued guidance identifying registered organizations in the state’s medical marijuana program as essential businesses during the COVID-19 pandemic. (Notably, New York does not yet have an adult-use commercial cannabis program.)

The NYSDH acknowledged that “many registered medical marijuana patients may have severe debilitating or life-threatening conditions, and are immunocompromised.” As a result, NYSDH announced modifications to its dispensing and home delivery policies. Registered organizations are allowed to dispense medical marijuana products at their dispensary doors to limit potential exposure to their staff and other patients.

Regarding home delivery, NYSDH directs that until April 16, 2020, registered organizations that are approved to deliver medical marijuana products to the homes of patients and caregivers are permitted to expand their delivery services without seeking the department’s prior written approval. However, it is recommended that drivers:

  • Wear masks and gloves while making deliveries.
  • Sanitize their hands after each delivery.
  • Encourage patients to use their own pens when a signature is required.

Registered organizations are allowed to confirm receipt of the delivered medical marijuana products by the patient or caregiver via phone call, text, or email in lieu of obtaining a signature so long as the confirmation is documented and retrievable upon audit.

New Jersey

On March 21, 2020, New Jersey Governor Phil Murphy issued Emergency Order 107. Medical marijuana dispensaries are among those deemed essential and allowed to stay open. New Jersey follows New York’s lead by allowing dispensaries to offer curbside pickup.

Massachusetts

On March 23, 2020, Governor Charlie Baker issued an emergency order requiring all non-essential businesses and services to close their physical workplaces. Unlike other stay-at-home directives, the Massachusetts order does not restrict travel, but does advise against it.

Medicinal dispensaries are included as essential business, but adult-use dispensaries are not. The Cannabis Control Commission permits medical dispensaries to expand medical delivery. Adult-use dispensaries have sought inclusion in the order on the basis that many adult-use patrons use cannabis for the treatment of anxiety and other issues.

Michigan

On March 23, 2020, Michigan Gov. Gretchen Whitmer issued Executive Order 2020-21: a stay-at-home order. While the order doesn’t specifically list cannabis dispensaries as essential, both medicinal and adult-use dispensaries are allowed to stay open to conduct curbside service or delivery. No sales are allowed inside stores.

California

On March 19, 2020, an emergency order was issued by Governor Gavin Newsom ordering all 40 million California residents to stay at home and not work, except for essential services, which are defined in the order as the 16 critical infrastructure sectors identified by the Cybersecurity and Infrastructure Security Agency (CISA). Although cannabis is not identified specifically within the CISA list, the order identifies certain services as essential, including food, prescriptions, and health care.

In support of the governor’s order, the California State Public Health Officer and the California Department of Public Health released a list of essential critical infrastructure workers. Cannabis retailers are listed as part of the essential workforce under the category of workers in other medical facilities. In addition, “workers supporting cannabis retail and dietary supplement retail,” are listed as essential within the food and agriculture sector.

California’s Bureau of Cannabis Control promptly followed the Governor’s emergency order with a notice clarifying that “because cannabis is an essential medicine for many residents, licensees may continue to operate at this time so long as their operations comply with local rules and regulations.”

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About The Authors
Multiple Contributors
Stacey A. Jackson

Stacey A. Jackson is general counsel at Golden Bear Insurance Company. stacey@goldenbear.com

Neil Willner

Neil Willner is associate at Wilson Elser Moskowitz Edelman & Dicker LLP.  neil.willner@wilsonelser.com

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