Louis J. Terminello, Esq.
What follows is a companion piece to
this author’s participation in a panel discussion, entitled, “Cannabis
Conundrum,” at the spring meeting of the (Urban Land Institute ULI) in
Nashville Tennessee, April 17 through April 19, 2019.
“Conundrum” is indeed the appropriate
word to describe the current state of the law in regard to the consumption of
marijuana. In particular, our industry – hospitality goods and services – is acutely
affected by the introduction of cannabis in this setting and the evolutionary
nature of the applicable body of law.
The challenge to the hospitality
provider is to develop an in-house policy and regulatory approach that balances
the operator’s business objectives and the law against its relationship with
its employees and invited guests.
Cannabis law is in a state of flux. As
state law is concerned, a zero-tolerance policy may no longer be effective and
in fact may expose an operator to legal action. The first point of analysis is
Marijuana, under federal law remains a Schedule I drug under the Controlled Substance Act (CSA) and is treated as having potential for abuse. Its derivative components, including CBD and THC, in any form are treated as illegal under the current scheme. The only permissible form of CBD is that which is derived from hemp, under .3 THC.
State law is another matter. In excess
of 30 states have legalized the consumption of cannabis for medical purposes
and 10 have approved it for recreational use. The body of law governing state
activity varies greatly and is changing at a rapid pace.
As hospitality providers, any best
policy framework needs to start with a thorough understanding of state law and
a determination of the permissibility of medicinal vs. recreational
legalization. What follows are “thinking points” for consideration and general
best practice policies under the current state of the law as well as preparing
for new developments under the law.
Hospitality providers must develop
clearly articulated employee policies when it comes to marijuana use. Hiring
and termination practices need to be established and communicated and
memorialized for decision makers. Areas to consider are pre-employment drug
testing under a medicinal regulatory scheme vs. a recreational scheme. It may
be permissible to deny employment to a recreational user as opposed to a
legitimate medical consumer of cannabis who has a prescription or state issued
medical card. Importantly, on average, states seem to adhere to safety in the
workplace. Consumption of marijuana while on duty may be treated the same way
(generally) as consuming alcohol on the job…termination may follow. The
critical takeaway is that all operators need to understand their own state(s)
laws, design effective policies in-line with corporate culture and articulate
those polices to all employees at every level. Articulation means documented
policy guidelines and executed acceptance of the same from employees (have them
sign jurat page stating that they have received, read and understand the
Guest accommodations should also be of
paramount concern to the hospitality operator and an analysis similar to the
above should be employed. However, in this arena there are other matters to
consider including corporate culture, sales and marketing objectives and the
general image the provider is portraying. Is the hospitality venue family-focused
or is it something other? Balancing the guest experience of the cannabis
consumer vs. non-consumer must be part of the equation. As example, assuming
that recreational use is permissible, designated smoking areas should be
considered. In the hotel setting, it may be advisable to designate certain
floors as cannabis use floors and others not. Balancing the wants and needs of
the non-consuming guest should be looked at. A guest code of conduct perhaps
outlining permissible consumption activities and areas should be provided to
consuming and non-consuming guests to either permit or avoid interaction
depending on the individual guest’s wants.
Lastly, providers need to consider examining their sales and marketing
programs in this new paradigm. Creating messages that are welcoming to cannabis
consumers and non-consumers should be worked through.
So, here we are, in a state of flux and
change as it applies to cannabis consumption. Hospitality providers must
educate themselves on permissible activities within the state(s) they operate,
create employee and guest appropriate guidelines, effectively communicate those
guidelines to all stakeholders and recognize that there is a learning curve in