By Alison B. Torbitt, Staci Jennifer Riordan, Hillary Baca, Rachel L. Conn

Cannabis companies, deemed essential businesses in many states, continue operating despite the COVID-19 pandemic. While many cannabis companies are struggling to stay open without eligibility for the Small Business Administration loans authorized by Congress, remaining operational has other considerations regarding how to revamp their retail stores without spreading communicable illnesses.

Considerations for all cannabis retailers

Cannabis retailers face many of the same questions as other retailers.[1] One of the biggest considerations is customer access. How will you limit customer count in the store to ensure proper social distancing? How do you decide how many customers are allowed in at a time? Who will monitor and enforce the rules? What happens if a customer does not wear a cloth face covering despite a requirement to do so? Will you require the customer to vacate the store immediately? What if the customer refuses to leave? How will you enforce social distancing of customers inside the store? Cannabis companies will need to have procedures and best practices for staff to address each of these scenarios.

Another important requirement for operating safely during the pandemic is staff safety policies and training. In addition to being trained on customer access issues and how to protect themselves, employees also need to be trained on how to properly clean the store. Even if you hire an outside service to do more robust nightly or weekly cleanings, there is still a need for regular cleaning throughout the day. Having employees clean in plain view of customers also may help customers feel safer and improve the overall health of the business.

Cannabis retailers also must consider revamping their stores to accommodate the need for social distancing and to protect employees. California guidelines call for retailers to implement measures to permit physical distancing of at least six feet between employees and customers. Cannabis retailers may need to remove fixtures and inventory from the floor to permit this level of social distancing. Retailers also should consider installing floor markings, colored tape, or signs to indicate where customers should stand when waiting to browse and purchase merchandise. Many cannabis retailers do not permit customers to handle merchandise prior to purchase and instead rely on catalogues or display cases for customers to decide what to buy. This remains good practice during the pandemic. “Look, don’t touch,” should be every retailer’s motto. Retailers should also consider the use of Plexiglas as a barrier between the customer and employee.

When customers are ready to pay for their merchandise, cannabis retailers should make the experience as touchless as possible for both customers and employees. This will help prevent the spread of COVID-19 and other communicable illnesses.

Special considerations for cannabis retailers with smoke rooms or lounges

Cannabis retailers that permit customers to smoke in a smoke room or lounge area face additional hurdles. As a preliminary matter, cannabis retailers should consider whether, as shelter-in-place orders slowly lift, opening their smoke rooms makes sense, as, by their nature, such smoke rooms counteract some preventive measures, like wearing cloth face coverings, and allow exhalation vapors to mingle where they might be re-inhaled. Just because your smoke room is permitted to open doesn’t mean it is practical or makes financial sense, or shouldn’t be remodeled to allow better air circulation or be moved outside. Prior to opening your smoke room, you also need to consider whether you can do so safely. Businesses have an obligation to protect both their employees and customers.

If a cannabis retailer decides (after reviewing the most recent state, county, city, and public health guidance) that it is safe to open its smoke room, it should develop policies and training for employees on social distancing, hygiene, and other safety requirements and ensure employees are properly trained prior to opening. Retailers opening smoke rooms should also develop written guidance and signage for customers outlining the rules for visiting smoke rooms. Requiring that all smoke room visits are by appointment only may help prevent overcrowding. Informing customers that cloth face coverings will be required before entry is permitted is also recommended. Cannabis retailers should also prepare a policy regarding the refusal of service to customers displaying symptoms consistent with COVID-19 and ensure that the policy is communicated to customers in advance, and vetted for customer privacy concerns. Smoke room seating should be reconfigured to comply with physical distancing requirements, and party size should be limited to a small number of people, preferably from the same household unit. And cleaning remains extremely important. Any surface in a smoke room with which customers have contact (e.g., tables, chairs, and counters) will need to be properly sanitized between each party.

The decision to continue operations or to reopen cannabis retail stores, including smoke rooms, is not an easy one. The already fraught economic and regulatory landscape that cannabis companies have had to navigate has become even more complicated in the wake of the pandemic. We will continue to monitor the shelter-in-place orders and other guidelines that impact cannabis retailers and prepare timely updates for the community.

About The Authors

Alison Torbitt, a partner with Nixon Peabody, co-leads the firm’s Food, Beverage & Agribusiness team, which helps clients monetize their brands, navigate safety laws, make profitable investments, protect human capital, anticipate legislative changes, embrace sustainability, and globalize the supply chain. In addition, Alison is a member of Nixon Peabody’s Energy and Environmental practice group and is also active in Maritime matter

Staci Jennifer Riordan, a Nixon Peabody partner, is vice chair of the firm’s Litigation department and leader of the Fashion practice. She works with designers, manufacturers, retailers and entertainers, providing strategic, business and legal advice so they can achieve their goals. A pioneer in fashion law, Staci handles both transactional and litigation matters for companies of all sizes—from startups to publically traded multi-national companies.

Hillary Baca is an associate in Nixon Peabody’s Labor & Employment group. She has experience representing employers in both federal and state court and before administrative agencies. Hillary advises employers on complex employment and traditional labor matters. She works with clients across a broad range of industries, but has particular experience advising employers in the health care industry.

Rachel Conn is an associate in Nixon Peabody’s Labor & Employment group, and she is a member of the firm’s Occupational Safety & Health (OSHA) practice. She represents clients in both federal and state court litigation and before administrative agencies as well as providing labor and employment law advice and training, with a particular emphasis on occupational safety and health compliance and litigation.

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1. We presented a checklist of items for retail stores to consider on April 29.
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