Bowles Rice Industrial Hemp and Medical Cannabis e-Alert
Hemp & Cannabis
Snags, Delays and Other Issues Facing
the West Virginia Medical Cannabis Act

By: Richard R. Heath, Jr., Esq. and Pamela J. Ferrell, Esq.

July 1, 2019 marked the official date in which identification cards could be issued to patients in West Virginia under the state's Medical Cannabis Act ("the Act"). However, the program has hit numerous snags along the way, resulting in significant delays in implementation. Consequently, medical cannabis sales still cannot take place in West Virginia. A full roll-out of West Virginia's Medical Cannabis Program is not expected until October 2021 at the earliest.

Accordingly, no lawful sales or growing of medical cannabis can take place in West Virginia because permits for growers, processors and dispensaries have yet to be issued. The West Virginia State Treasurer's Office is currently seeking a third-party vendor to handle the banking services associated with the implementation of the Act. Until those services are secured, the Bureau of Public Health cannot even begin the permitting process that is required to effectuate the medical cannabis program. Ultimately, state officials say it could take as long as two to three years from the completion of the banking services before the first medical cannabis sales are made in West Virginia.

However, despite the delay, employers are already facing issues related to the use of medical cannabis in the workplace. What happens when an employee is certified to use medical cannabis in another state? Can CBD oil (a non-intoxicating hemp product made lawful by the already effective West Virginia Industrial Hemp Act) result in a positive drug test? What policies should employers be setting now to be prepared for the new law and medical cannabis program?

The answers to these questions vary greatly based upon a multitude of factors, and in some instances, the ultimate interpretation of the law is not yet clear.

Employers should familiarize themselves with the impact the Act may ultimately have on their business. In particular, employers should look at W. Va. Code § 16A-15-4, which prevents employers from discriminating against employees based solely on their status as a person certified to use medical cannabis, but which also affords some protections to employers relating the use of medical cannabis in the workplace.

Moreover, while the Act authorizes certain individuals with serious medical conditions to use medicinal cannabis in West Virginia, marijuana continues to be a Schedule I controlled substance under the federal Controlled Substances Act. Possession is a federal crime, even if prescribed by a physician. Importantly, the West Virginia Medical Cannabis Act specifies that employers are not required to take actions that will cause the employer to violate federal law.

While there is still much uncertainty about the full impact the Medical Cannabis Act will have on employers, our team is following the law closely and is prepared to help employers navigate its tricky terrain.

Marijuana is an illegal Class I drug pursuant to United States federal law. As legal counsel, Bowles Rice may counsel or assist clients regarding conduct expressly permitted under West Virginia Senate Bill 386. However, all activities related to marijuana are currently illegal under the federal laws of the United States and nothing contained in this e-alert is intended to assist in any way with violation of applicable federal or state law.

For more information:
Please contact a member of the Bowles Rice Industrial Hemp and Medical Cannabis Team if you have any questions about this e-alert or need additional information about the continuing implementation of the West Virginia Medical Cannabis Act.

Richard R. Heath, Jr.
(304) 347-1136

Pamela J. Ferrell
(304) 420-5590

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