Reopening Massachusetts: 6 Key Considerations for Retail Cannabis Operators

May 26, 2020

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On May 18^th, Massachusetts Governor Charlie Baker announced the Commonwealth’s four-phase roadmap (the “Plan”) to reopening business operations in the Commonwealth. Order Implementing a Phased Reopening of Workplaces and Imposing Workplace Safety Measures to Address COVID-19, a.k.a. Covid-19 Order No. 33 (the “Reopening Order”).

Pursuant to Governor Baker’s previous Order No. 13, Assuring Continued Operations of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People, issued on March 23, 2020, (Essential Services Order), and amended on April 28, 2020 and May 15, 2020 (Extended Essential Services Order), adult-use cannabis dispensaries had been shut down since March 24^th, after being deemed as “non-essential businesses,” while manufacturers, cultivators and medical cannabis dispensaries in the Commonwealth were classified as “essential” and permitted to continue operations subject to certain COVID-19 protocols.

Now under Phase 1 of the Plan, retail adult-use operators, including dispensaries, are permitted to reopen beginning on May 25^th for “curbside pickup and delivery only” while “browsing inside the store with restrictions” is forecasted to be permitted under Phase 2 of the Plan.

• Projected Timeline. Each phase of the Plan is expected to last a minimum of three weeks with the potential of being extended for a longer duration before the next phase is implemented.

• Liquid Progression/Regression of Phases. The administration will look to public health data trends to determine if and when it is appropriate to proceed through the reopening phases. If metrics indicate significant increases in viral transmission, the return to an earlier phase or closing certain sectors of the economy could result. For this reason, cannabis operators planning to reopen should prepare their business for a fluid return and progression between phases of the Plan as may be dictated by public health metrics. Key indicators of such metrics include:
  • COVID-19 positive test rates
  • The number of the individuals who have died from COVID-19
  • The number of patients being hospitalized with COVID-19
  • Healthcare system readiness
  • Testing capacity
  • Contact tracing capabilities

• Protocols. All operators opening in Phase 1 will need to adhere to general “Mandatory Workplace Safety Standards” and a “MA COVID-19 Checklist” that the administration has released. These protocols set forth new standards for workplaces that are designated to reduce risk of COVID-19 transmission to customers and employees. Some operational Mandatory Workplace Safety Standards that cannabis businesses should prepare to implement in their worksites include:
  • Social distancing of at least 6 feet apart between all persons, including employees and customers, both inside and outside the workplace.
  • Face masks or coverings for all employees
  • A COVID-19 Control Plan outlining how the business will comply with mandatory safety standards for operating during the COVID-19 reopening period. This plan should include protocols for employees that become ill from COVID-19 at work and a return-to-work employee plan
  • Signage for safe social distancing, including:
    • Posting a certification of compliance to the Control Plan Checklist that is visible to employees and customers
    • Posting an Employer and Worker posters displaying rules for maintaining social distancing, hygiene protocols and cleaning/disinfecting guidelines
  • Regular sanitization of “high touch areas” in the workplace and access to adequate hand washing capabilities throughout the work site
  • Employee training on social distancing and hygiene protocols

• CCC Updates. In response to the Reopening Order, the Cannabis Control Commission (the “Commission”) released a Final Cease and Desist Order and an Amended Administrative Order Allowing Curbside Operations  highlighting actions that adult-use and medical treatment operators must take during the reopening process, including that:
  • All adult-use operators should ensure that their operating procedures for workplace safety comply with 935 CMR 500.105(1)(r) and 935 CMR 501.105(1)(r) in addition to the mandatory safety standards set forth by the reopening requirements;
  • Licensed manufacturers must follow Safety Standards for Manufacturing released by the administration;
  • In order to facilitate adult-use transactions, pre-orders may be conducted by phone or electronic means with consumers prior to the purchase or transfer of marijuana or marijuana-related products so long as licensees adhere to consumer privacy protections set forth in G.L. c. 94G, § 4(c)(3) and 935 CMR 500.140(2)(c);
  • Curbside sale protocols identified in the Amended Administrative Order are used to verify the consumer’s age (and all other individuals in the vehicle) as well as maintain COVID-19 safety standards;
  • All Curbside Operations must be physically located to enable video recording by an existing video camera in accordance with 935 CMR 500.110 (5); and
  • Licensees shall submit standard operating procedures and a facility layout to the Commission and to municipalities in which such operator is located, identifying changes to the outdoor premises 48 hours before commencing operations.

• Disciplinary Action. Operators re-opening their businesses during any phase of the Plan should be mindful that failure to comply with the conditions set forth by Governor Baker or the Commission may result in disciplinary action against such licensee and its agents, including the revocation or suspension of licensure or registration and any additional criminal or civil penalties established under the Governor’s Essential Services Order.

• Monitoring Additional Guidance. All adult-use operators should not only adhere to the usual cannabis regulations and newly-issued COVID-19 orders and guidelines, but operators should also monitor and comply with all updated bulletins, orders and guidance from the Commission, the Executive Office of Housing and Economic Development, and the Governor’s administration.  

For more information on the return of adult-use cannabis in Massachusetts, click here.

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About the Author: Lauren Medeiros Forster

Lauren Medeiros Forster is an associate in the firm’s Corporate department. Her practice focuses on commercial contracts, mergers & acquisitions, finance, securities, lending, and private equity matters. Lauren applies her skillset in these various practice areas to assist clients in a wide range of industries including cannabis, banking, information technology, life sciences, distribution, and transportation. She has represented clients on both the buy and sell side of complex corporate transactions such as capital raises, equity and debt financing, stock purchases, and asset sales. Lauren has also assisted in providing guidance to private and public companies on matters relating to corporate governance, equity compensation, and securities law compliance and disclosure. She can be reached at lforster@burnslev.com or 617.345.3389.