Biden’s vaccine mandate expected to apply to marijuana industry

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The marijuana industry should expect to feel the same impacts as other industries from imminent federal regulations requiring businesses with more than 100 employees to impose a coronavirus vaccine mandate or mandatory weekly testing for those who don’t vaccinate.

President Joe Biden on Thursday announced the proposed rules, which will be implemented by the Department of Labor’s Occupational Safety and Health Administration (OSHA) via an upcoming emergency order.

“The cannabis industry would be subject, I expect, to the same rules other employers are,” Jonathan Keselenko, a labor lawyer and partner in the Boston office of Foley Hoag, told MJBizDaily on Friday.

“It’s clear (from court rulings) that federal statutes and agencies generally have jurisdiction” over the cannabis industry.

It’s unclear, however, how many marijuana businesses and workers will be affected. Some marijuana businesses already have similarly strict requirements.

The 2021 MJBizFactbook estimates the industry employs the equivalent of 340,000 to 415,000 full-time workers nationwide.

But many businesses are small and won’t meet the 100-employee threshold.

Then it will depend on how OSHA defines a business, Keselenko said.

“I think like a lot of things the devil is in the details,” he said. “We’ll have to see what comes out.”

For example, the federal Family Medical Leave Act applies to employers with at least 50 employees within a 75-mile radius.

So it’s possible that OSHA, too, could come out with a site or geographic specific requirement.

The marijuana industry is further complicated by the patchwork of states that have legalized medical and recreational cannabis markets, so licensees have market-specific operations.

But Keselenko said he expects the broadest definition possible to be applied by OSHA, given Biden’s direction.

That could well mean that businesses will be defined by how many workers they employ nationwide.

Court rulings, as Keselenko noted, favor federal jurisdiction over state-legal marijuana companies.

Here are only a few examples:

  • In 2019, the U.S. Court of Appeals ruled, in the case of Denver-based Helix TCS, that state-licensed marijuana businesses must adhere to federal labor laws governing overtime pay.
  • In 2020, Standing Akimbo, a medical cannabis dispensary in Denver, lost a federal appellate court case to prevent the IRS from obtaining business records from state regulators.
  • In April 2021, a U.S. appeals court rejected California-based Harborside’s yearslong effort to rebuff Section 280E of the Internal Revenue Code, which prevents state-legal marijuana businesses from taking ordinary business deductions.

Jeff Smith can be reached at