HR Management & Compliance

Fearing State Employee Liability, Delaware Douses Medical Marijuana Law

by Molly DiBianca and Michael P. Stafford

Delaware’s medical marijuana program has been extinguished. According to the Delaware News Journal, Governor Jack 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. Realizing that the state will not be able to staff the program without putting employees at risk of being prosecuted under federal criminal laws, Markell put on the brakes.

The death of the Delaware Medical Marijuana Act (DMMA), which was passed in May 2011, isn’t 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 Delaware law was passed in May 2009, 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 wouldn’t prosecute individuals for marijuana offenses made legal under state law. That position has changed, however, and the U.S. 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 county).

The uncertainty created by contradictory enforcement signals at the federal level has affected the implementation of medicinal marijuana legislation in other states as well. As was previously noted on the Delaware Employment Law Blog, a Justice Department warning that “state employees who conducted activities mandated [under a proposed law] would not be immune from liability” led Washington Governor Christine Gregoire to veto a medical marijuana bill. Similar warnings of potential enforcement actions targeting marijuana dispensaries also led Rhode Island Governor Lincoln Chafee to halt plans to create state-licensed compassion centers there 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 cardholders 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 cardholder’s system wouldn’t suffice to establish that the individual was under the influence of the drug.

Molly DiBianca and Michael P. Stafford are attorneys with Young Conaway Stargatt & Taylor LLP in Wilmington, Delaware and contributors to the Delaware Employment Law Letter.