As the coronavirus pandemic spreads across the country, many businesses have closed temporarily under “stay-at-home” or “shelter-in-place” orders – but cannabis companies largely have been exempted from this trendAs the coronavirus pandemic spreads across the country, many businesses have closed temporarily under “stay-at-home” or “shelter-in-place” orders – but cannabis companies largely have been exempted from this trend.

A variety of different jurisdictions across the county have deemed cannabis companies as “essential” – alongside more traditional businesses such as grocery stores, doctors’ offices, pharmacies and gas stations. While initial guidance on whether marijuana businesses fell into the “essential” category was somewhat unclear – and caused concern among industry leaders – subsequent orders in certain jurisdictions have clarified the scope and effect of such orders.

As of March 24, the following states have categorized marijuana businesses as “essential” – allowing them to stay open in some capacity even amid the restrictions – although guidance differs whether both medical and recreational sales can continue as essential.  Because guidance changes every day, we caution businesses to consult the governor or mayor’s website in the jurisdictions where they are located for the latest requirements.

  • California: All licensed marijuana businesses – including medical facilities and retailers – are allowed to continue with business as usual, as cannabis companies are listed as “essential” under the state’s order.  The “essential” designation also extends to farmers, distributors, testing labs and manufacturers involved in the cannabis supply chain.  The state’s lockdown order effectively does not distinguish between medical and recreational cannabis companies, permitting widespread operations to continue throughout the industry within the state.
  • Colorado: The governor’s initial executive order only permitted doctors to provide medical cannabis recommendations by use of telemedicine, but a second order allowed for retail operations to also remain open as long as recreational customers order in advance for curbside pickup.  Independent of the state’s order, some counties and localities have categorized dispensaries as essential services allowed to stay open. In Denver, for example, recreational dispensaries are classified as essential businesses exempted from the city’s stay-at-home order as long as they limit the number of customers that can enter the business at one time under social distancing procedures.
  • Connecticut: Medical cannabis is listed as “essential” in the state’s order.
  • Florida:  Under the state’s order, doctors can provide medical cannabis re-certifications to current patients through telemedicine – but no new patients can be added.
  • Illinois:  Marijuana businesses (both dispensaries and cultivation facilities) are permitted to stay open under the state’s stay-at-home order, with dispensaries allowed to offer curbside sales of medical cannabis.
  • Maryland: Medical growers, processors and dispensaries are exempt from the state’s order and are classified as essential; the state also permits medical patients to receive parking lot deliveries from dispensaries.
  • Massachusetts:  The state’s stay-at-home order lists medical marijuana businesses as essential, but does not exempt recreational cannabis from the order.
  • Michigan: Although no in-person sales at stores are permitted under the state’s order, marijuana business can offer curbside sales and make at-home deliveries.
  • New Hampshire: Medical cannabis curbside pickups from dispensaries are authorized.
  • New Jersey: The state’s stay-at-home order exempts medical cannabis dispensaries and permits patients to use curbside pickup.
  • New Mexico: State officials determined that medical cannabis companies are essential business and can remain open; curbside pickup also is permitted.
  • New York: Licensed organizations in the state’s medical marijuana program have been deemed as “essential medical providers” under the state’s order and are permitted to remain open.
  • Ohio: The state’s stay-at-home shutdown order is strict, medical cannabis companies are exempted.  Doctors also are allowed to offer medical cannabis recommendations by using telemedicine, eliminating the need to meet patients in person.
  • Oregon: Licensed retail cannabis locations are authorized to offer curbside delivery, and state also increased sales limits for medical cannabis.
  • Pennsylvania: Although the state issued a strict order closing many businesses, medical cannabis companies were referred to as “life-sustaining” operations and thus were exempt. Moreover, dispensaries can bring marijuana to patients who wait in their cars outside of the business.
  • Washington State:  The state’s stay-at-home order permits marijuana businesses to remain open, calling them essential.  For medical cannabis patients, dispensaries can offer curbside deliveries.

Despite recognition from the above states that cannabis businesses should be kept open, other states have enacted more restrictive policies.

For example, Nevada determined that all cannabis sales must be conducted via delivery – effectively shutting down all business storefront operations.  While Massachusetts allows medical marijuana retailers to sell cannabis products, dispensaries that only offer recreational products must halt operations.

And of course, social distancing measures are in place, even at cannabis businesses allowed to remain open and deemed as essential.  That means that retail operations must limit the number of customers inside the facility at one time and must ensure that such customers are adhering to physical space limitations while browsing the store or waiting in line.

Cannabis businesses remaining open also must follow the Center for Disease Control’s guidance on how to prevent the spread of coronavirus, which includes:

  • Encouraging employees who are sick to stay home;
  • Instructing employees to regularly wash their hands; and
  • Performing regular workplace cleaning.

Kelley Drye is closely monitoring the stay-at-home orders and provides counseling on these issues.  Please see our COVID-19 Response Resource Center for updates on a variety of legal topics.