medical-marijuana program has gone up in smoke. According to the News
Journal, Gov. Markell "has suspended the regulation-writing and
licensing process for medical-marijuana dispensaries--effectively killing the
program." The decision comes in response to a letter from U.S. Attorney
Charles M. Oberly III.
The governor's office sought guidance from Oberly about
the legal implications of state employees who work at a dispensary. Oberly's
response was clear: "State employees who conduct activities mandated by
the Delaware Medical Marijuana Act are not immune from liability" under
the Controlled Substances Act.
The death of the Delaware Medical Marijuana Act (DMMA),
which was passed in May, 2011, is not due to a unique defect in the statue
itself, which shares common elements with other state medical marijuana laws.
Instead, the crux of the problem is the intersection of state and federal law
and the shifting approach to enforcement taken by the Obama administration.
Despite state statutes like the DMMA, marijuana,
medicinal or otherwise, remains illegal under the federal Controlled Substances
Act as a "Schedule 1" controlled substance--the same category as
drugs like heroin and LSD.
When the DMMA
was passed in May 2011, legislators were under the impression that the
federal government would not prosecute employees in future dispensaries. This
understanding was due to representations by the Obama administration that it
would not prosecute individuals for marijuana offenses made legal under state
law. That position has changed, however, and the federal Department of Justice
is now drawing a distinction between physicians prescribing medicinal
marijuana, and individual cardholders, on the one hand, and "large scale,
privately owned industrial cultivation centers" on the other. This is
problematic for Delaware because the DMMA initially centralizes marijuana
distribution in just three Compassion Centers (with one located in each
The uncertainty created by contradictory enforcement
signals at the federal level has impacted the implementation of medicinal
marijuana legislation in other states as well. As we posted previously, a
Justice Department warning that "state employees who conducted activities
mandated [under a proposed law] would not be immune from liability" led
Washington Gov. Gregoire to veto that state's medical-marijuana bill. Similar
warnings of potential enforcement actions targeting marijuana dispensaries also
led Rhode Island Gov. Chafee to halt plans to create state-licensed compassion
centers, as well.
The news should be a relief to Delaware employers
concerned about the workplace implications of the DMMA which, among other
things, would have made it unlawful for an employer to terminate a cardholder
for failing a drug test unless they "used, possessed, or (were) impaired
by marijuana" while at work during normal hours. The DMMA also specified
that the mere presence of marijuana components or metabolites in a cardholders
system would not suffice to establish that they were under the influence of the
While some effort to amend the DMMA to address federal
enforcement concerns is likely, for now, medical marijuana's future in Delaware
appears hazy, at best.
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog. Ms. DiBianca is an attorney with
Young, Conaway, Stargatt & Taylor, LLP.
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