Cannabis Companies Deemed ‘Essential’ Businesses in Some States, But Not All

UPDATED April 14, 2020Alerts

UPDATED on April 14, 2020

Like all businesses navigating the current COVID-19 crisis, cannabis companies are eager to understand how state and local orders will impact their operations. As states issue orders requiring all but essential businesses to close, a key question is whether cannabis businesses can continue to operate.

Some states have explicitly included cannabis companies as essential businesses, while others have not given explicit guidance.

The following is a list of states that have issued guidance as of the date of this alert. The rules are evolving and likely to remain in flux, so the information is expected to change as states further develop their policies. We will update this resource as needed.

Alaska

Licensed cannabis businesses can remain open.

On March 27, 2020, Gov. Mike Dunleavy issued an order limiting the travel between communities to critical infrastructure or critical personal needs and requiring all non-essential or critical infrastructure businesses to close. Cannabis businesses were not expressly named as critical infrastructure or an essential businesses; however, the list does allow all other businesses to remain open if they can maintain Alaska’s Social Distancing Requirements and prohibit congregations of no more than 10 people in the business at a time, including employees. Alaska cannabis retailers are not allowed to deliver or offer curbside pickup, but, due to COVID-19, they are allowed to use ID check windows for sales and allowing retailers to build pass-through windows. Telemedicine are allowed for medical prescription renewals but not for initial appointments.

Arizona

Licensed cannabis businesses can remain open.

On March 30, 2020, Gov. Doug Ducey issued an order that all residents limit their time away from their homes, except to conduct or participate in Essential Activities, for employment, or to volunteer or participate, in Essential Functions, to utilize any service or products provided by Essential Businesses, or to travel to and from your office if you’re employed as a sole proprietor or family owned business and your office is closed to the public. Arizona has not specifically named medicinal cannabis businesses as Essential Businesses; however the list does include healthcare operations and suppliers for essential businesses and operations. Therefore, it appears that all cannabis businesses in Arizona can remain open if they implement social distancing policies and procedures. Arizona allows cannabis retailers to deliver and they are allowing for curbside pickup during the crisis.

Arkansas

Licensed cannabis businesses can remain open.

Gov. Asa Hutchinson issued an order on March 26, 2020, prohibiting gatherings of 10 or more people. However, the order does not apply to businesses. Rather, businesses are advised to limit person-to-person contact and maintain appropriate social distancing of at least six-feet. The Department of Health previously closed all dine-in restaurants and bars, but has allowed them to remain open only for deliveries and takeout. There is no such order for cannabis stores at this time, but social distancing policies are highly advised. Deliveries are allowed in Arkansas; however, there is no curbside pickup available. Telemedicine visits are now allowed to obtain your medical cannabis cards and the Department of Health has extended the expiration date on the cards until 30 days after the emergency declaration is lifted.

California

Licensed cannabis businesses can remain open, subject to any local restrictions.

On March 19, 2020, following imposition of similar shelter-in-place orders in a number of California counties, Gov. Gavin Newsom issued Executive Order No. 33-20, requiring residents to stay at home other than as needed for certain essential needs. Although the state order does not reference cannabis businesses, guidance posted on the state website indicates that licensed cannabis retailers may remain open. In addition, on March 21, 2020, the California Department of Food and Agriculture sent an e-mail out to its licensees indicating that cultivation is an essential business across the state. Los Angeles, San Francisco and Sacramento had previously indicated that cultivation operations could remain open. Social-distancing and other requirements are in place with respect to dispensaries, and certain areas, including Sacramento and Los Angeles, are allowing curbside pickup and home delivery. Businesses should check county ordinances to confirm whether a particular county has imposed additional restrictions, such as requiring curbside pickup.

Colorado

Licensed cannabis businesses can remain open.

On March 25, 2020, the Gov. Jared Polis issued a Stay-At-Home order instructing all Colorado residents to stay in home except when engaging in activities that are critical to their health and safety. Only critical businesses are allowed to remain open, which includes cannabis dispensaries. However, dispensaries can only offer medical cannabis or curbside delivery for recreational cannabis. The Department of Revenue previously issued additional guidance and new emergency regulations to allow phone and online purchases as well as curbside pickup.

Connecticut

Licensed medical cannabis dispensaries can remain open.

On Friday, March 19, Connecticut Gov. Ned Lamont ordered “non-essential” businesses to closed and urged residents to remain in their homes. That announcement noted that pharmacies are considered essential businesses. The state’s Department of Consumer Protection later clarified that medical marijuana dispensaries will be treated like pharmacies, and therefore remain open.

Delaware

It is unclear whether cannabis businesses can remain open.

On March 22, 2020, Gov. John Carney issued Fourth and Fifth modifications to his prior orders addressing the COVID-19 Crisis. Read together, the modifications allow essential businesses to remain open provided that they follow certain health and safety guidelines, including social distancing. Non-essential businesses must close physical locations but may utilize the minimum number of employees necessary for activities that constitute minimum basic operations, such as preserving inventory, and must also follow the guidelines noted above. The modifications do not expressly address cannabis businesses, but do include pharmacies and workers who support pharmacies in the category of essential businesses.

District of Columbia

Licensed medical cannabis businesses can remain open.

On March, 24, 2020, Mayor Muriel Bowser issued Order 2020-053, requiring that non-essential businesses cease activities other than those that can be conducted at home, or as needed to maintain Minimum Basic Operations, such as maintaining inventory. Medical cannabis dispensaries are included in the definition of “Essential Businesses” which may remain open, but must follow social distancing guidelines. 

Florida

It is unclear whether cannabis businesses can remain open in Miami-Dade, Broward, Monroe, Palm Beach and Orange counties.

At the statewide level, non-essential businesses have not been formally ordered to shut down, but Miami-Dade, Broward, Palm Beach and Orange counties have ordered such shutdowns. In Miami-Dade county, all non-essential retail businesses have been ordered to shut down pursuant to Emergency Order 7-20. The order does not expressly address cannabis businesses, but allows an exception for pharmacies. Orange Beach County Order 2020-04 requires closure of all non-essential retail and commercial businesses other than essential businesses. Similar to the Miami-Dade County Order, the Orange County Order does not expressly address cannabis businesses, but allows an exception for pharmacies. Only Broward and Palm Beach counties were explicit in allowing medical cannabis businesses to remain open as essential retail businesses. However, an order issued by Gov. Ron DeSantis after the date of the Broward and Palm Beach orders provided that those two counties, as well as Monroe County, must follow the guidance issued by Miami-Dade County, unless county administrators explicitly add to the definitions of essential businesses. The order overrides existing orders, so it appears that revised orders must be issued in Broward and Palm Beach county to reiterate the categories of essential businesses allowed in those counties. 

Hawaii

Licensed medical cannabis dispensaries and cultivation centers can remain open.

On March 23, 2020, Gov. David Ige issued a proclamation requiring closure of non-essential businesses. Licensed medical cannabis dispensaries and cultivation centers are listed as essential businesses. Essential businesses must comply with social distancing guidelines set forth in the proclamation. Hawaii does not allow for delivery or curbside pick. However, they do allow telemedicine visits to be used to renew a medical cannabis card, but not for the initial appointment.

Illinois

Licensed cannabis businesses can remain open.

On March 20, 2020, Gov. Pritzker issued COVID-19 Executive Order No. 8, pursuant to which all individuals currently living within the State of Illinois were ordered to stay at home or at their place of residence until at least April 7, 2020, other than for Essential Activities, Essential Governmental Functions or to operate Essential Businesses and Operations, in each case as defined in the Executive Order. Any businesses and operations not qualifying as Essential Businesses and Operations are required to cease, and all Essential Businesses and Operations are required to comply with social distancing requirements to the greatest extent feasible. Licensed medical and adult use cannabis dispensaries and licensed cannabis cultivation centers are specifically included in the definition of Essential Businesses and Operations.

Louisiana

Licensed cannabis businesses can remain open.

On March 22, 2020, Gov. John Bel Edwards issued a stay-at-home order for all residents. Louisiana residents can leave their home to obtain food, medicine, and other similar goods. In addition to closing all casinos, bars, and movie theaters and limiting restaurants to delivery, take out and drive-through orders only, the Gov. Edwards closed all public amusement locations, personal care and grooming businesses, and all malls. Cannabis businesses are still not required to close. The Louisiana Board of Pharmacy relaxed its regulations to allow dispensaries to deliver patients their medication. Telemedicine visits are also allowed for existing patients during the declared emergency.

Maine

Licensed medical dispensaries can remain open.

On March, 24, 2020, Gov. Janet Mills ordered the closure of non-essential public facing businesses as well as those businesses which are not public-facing but which require more than 10 employees to convene in a place where social distancing is not possible. The order does not expressly address cannabis businesses, however, pharmacies and other medical facilities are considered essential. In a memo dated March 24, 2020, Maine’s Office of Marijuana Policy stated that medical dispensaries and caregivers are “other medical facilities."

Maryland

Cannabis dispensaries can remain open.

On March 16, 2020, the Maryland Medical Cannabis Commission issued Bulletin 2020-006. The order temporarily changes certain rules related to dispensary operations, including prohibiting activities such as using sniff jars and deli-style sales, and allows inspectors increased latitude to suspend a company’s operations if they determine there is a public health issue. Among other requirements, dispensaries must follow social distancing guidelines and frequently clean and disinfect surfaces.

Massachusetts

Licensed medical cannabis businesses can remain open.

On March 23, 2020, Gov. Charlie Baker issued Covid-19 Order No. 13, requiring all non-essential businesses to close. His office later published a list of essential businesses, which includes medical marijuana retailers but not adult-use retailers. The state’s Cannabis Control Commission (CCC) later issued a Cease and Desist Order requiring all adult-use Marijuana Establishments and Marijuana Treatment Centers “conducting adult-use retail at non-co-located premises” to close. Independent testing labs providing services to medical operators were exempted from the Cease and Desist order. On March 27, the CCC issued Administrative Order No. 1, allowing medical dispensaries to offer curbside pickup and telephone presales as long as the guidelines set forth in the order were followed. 

Michigan

Licensed cannabis businesses can remain open.

On March 23, 2020, Gov. Gretchen Witmer ordered businesses that are not necessary to sustain or protect life to close. The Michigan Marijuana Regulatory Agency (MMRA) later issued an advisory bulletin confirming that licensed medical and adult-use businesses may remain open. Prior to the state order, on March 16, the MMRA had issued another advisory bulletin which authorized licensed medical and adult use dispensaries to begin making home deliveries and allowing customers to utilize “curbside pickup” as opposed to entering the dispensary.

Minnesota

Licensed cannabis manufactures and patient care centers can remain open.

On March 25, 2020, Gov. Tim Walz issued a “stay-at-home” order that took effect on March 27, 2020. Gov. Walz has already ordered the closing of all restaurants, bars, cigar and hookah bars, theaters, museums, country clubs, amusement parks, gyms, spas, barbers and salons. However, licensed cannabis manufactures and patient care centers are not required to close. Gov. Walz has also issued an order allowing for curbside pick-up for licensed manufacturers and care centers and lifted restrictions on caregivers to provide medications to the most vulnerable patients and has allowed telemedicine visits for medical cannabis cards and prescriptions due to the crisis.

Montana

Licensed cannabis businesses can remain open.

On March 26, 2020, Gov. Steve Bullock issued an order instructing all residents to stay-at-home and the closing of all non-essential businesses. Licensed medical cannabis dispensaries and licensed cannabis cultivation centers are classified as essential Health Care and Public Health Operations and are allowed to remain open and residents may leave their home to obtain their medication. Essential businesses must take proactive measured to ensure compliance with the state’s Social Distancing Requirements. Patients may use telemedicine visits to obtain a medical cannabis card or renew their current card. Deliveries are allowed if the local jurisdiction allows medical cannabis deliveries and curbside pickup is also allowed.

Nevada

Licensed cannabis business can remain open.

On March 31, 2020, Gov. Steve Sisolak issued a “stay-at-home” order requiring all residents stay at home unless perform work necessary or to obtain services or goods necessary from Essential Licensed Businesses. On March 20, 2020, Nevada issued emergency regulations. Pursuant to those regulations, licensed cannabis entities, including dispensaries, producers, and cultivators are considered Essential Businesses. Licensed cannabis dispensaries must ensure sales to consumers are by direct delivery only, curbside pickup is not allowed. Licensed cannabis producers and cultivators are required to strictly adhere to social distancing protocol. Nevada does allow telemedicine visits to obtain a medical cannabis cards.

New Hampshire

It is unclear whether licensed cannabis businesses can remain open.

On March 28, 2020, Gov. Chris Sununu issued an order requiring certain non-essential retail businesses to close. The order allows pharmacies to remain open, but does not address cannabis businesses. News sources have indicated that state regulators have taken the position that cannabis businesses are essential, but the regulators have not yet published any statements regarding this position. 

New Jersey

Licensed cannabis dispensaries can remain open.

On March 21, New Jersey Gov. Phil Murphy issued Executive Order 107 that goes into effect at 9 pm on March 21. EO 107, among other things, mandates the closure of all non-essential businesses. Medical marijuana dispensaries, however, are specifically mentioned in the list of entities deemed to be “essential retail businesses” and permitted to remain open. It is worth noting that EO 107 further requires that when in public individuals must practice social distancing and stay at least six feet apart whenever practicable. As such, the social distancing requirements should be implemented by the medical marijuana dispensary. On March 23, 2020, the state’s Department of Health announced new policies in response to the Covid-19 crisis, including implementation of a program for curbside delivery and waiving in-person consultations for new patients.

New Mexico

Licensed cannabis businesses can remain open.

On Wednesday, March 23, 2020, Gov. Michelle Lujan Grisham issued an order closing all non-essential businesses. New Mexico’s cannabis program only allow medicinal cannabis and the Governor’s order allows healthcare operations, manufacturing, and pharmacies to remain open, which would include medicinal cannabis businesses. The regulators have also stated that cannabis businesses are essential and can offer curbside pickup services. Telemedicine visits are allowed to renew a medical cannabis card, but not for the initial appointment.

New York

Licensed cannabis dispensaries can remain open.

On March 20, 2020, Gov. Andrew Cuomo issued the “New York state on PAUSE” executive order, ordering all “non-essential businesses closed” effective at 8 p.m. Sunday March, 22. Although the order did not state whether cannabis businesses would be considered essential, a spokesperson for the governor previously told National Public Radio that organizations registered under New York’s Medical Marijuana Program “are essential medical providers and will be allowed to remain open.” All retail businesses remaining open must adhere to social distancing guidelines.

North Dakota

Licensed cannabis businesses can remain open.

Gov. Doug Burgum signed an order on March 19, 2020, closing bars, restaurants, gyms, and movie theaters. On March 27, 2020, Gov. Burgum amended the order to include barbers, tattoo shops, manicurist salons, cosmetologists, tanning facilities, and massage facilities to close. However, cannabis businesses are not required to close at this time, but social distancing policies for customers and employees are highly recommended. North Dakota allowed cannabis deliveries, but does not allow curbside pickup. Telemedicine visits are allowed to obtain medical cannabis cards.

Ohio

Licensed medical cannabis businesses can remain open.

On March 22, 2020, the Ohio Department of Health Director Amy Acton issued a Stay At Home Order ordering non-essential businesses to cease operations other than “Minimum Basic Operations." The order lists medical marijuana dispensaries and cultivation centers in the list of Healthcare and Public Health Operations that constitute essential businesses. On April 3, 2020, the state’s Board of Pharmacy issued a resolution allowing dispensaries to temporarily sell via curbside pickup, subject to compliance with the guidelines set forth in the resolution.

Oklahoma

Licensed cannabis businesses can remain open.

On April 1, 2020, Gov. Kevin Stitt extended his previous executive order to close all businesses not identified as being within a critical infrastructure to apply to all counties within the state. The Oklahoma Medical Marijuana Authority has issued a statement that all medical marijuana businesses are considered essential service and are not required to close at this time. Dispensaries cannot deliver products to their patients, but a spokesperson from the Medical Marijuana Authority, Terri Watkins, has said that the curbside pickup service is similar to restaurants that offer carry-out food only. Medical cannabis patients can park outside a dispensary and have their products brought to them. Oklahoma does allow telemedicine visits to obtain a medical cannabis card.

Oregon

Licensed cannabis businesses can remain open.

Gov. Kate Brown issued an order on March 23, 2020, that all businesses where close personal contact is difficult or impossible to avoid, but allowed cannabis businesses to remain open if they physically distance customers, or use takeout and delivery services. The Oregon regulators amended their cannabis regulations to allow curbside pickup for dispensaries. Oregon allows telemedicine visits to be used to renew a medical cannabis card, but cannot be used for the initial appointment.

Pennsylvania

Licensed cannabis business can remain open.

On March 17, Gov. Tom Wolf ordered the closure of certain businesses deemed non-essential as part of each state’s COVID-19 mitigation efforts. The initial announcement indicated that pharmacies and other healthcare facilities were deemed “essential.” The Pennsylvania Department of Health later clarified in a statement that medical marijuana dispensaries fall into the same classification as pharmacies, and can remain open as essential businesses.

Rhode Island

Licensed medical dispensaries can remain open.

On March 28, 2020, Gov. Gina Raimondo issued an order requiring certain non-essential retail businesses to close. The order allows dispensaries (known as compassion centers in Rhode Island) to remain open.

Utah

Licensed cannabis businesses can remain open.

On March 27, 2020, Gov. Gary Herbert issued a “Stay Safe, Stay Home” order.  Residents were ordered to stay at home and to limit travel only to essential travel, which includes to obtain medications and medical services. The order also directs businesses to take proper social distancing precautions wherever possible, but there are no orders that cannabis businesses must close at this time. Deliveries and curbside pickup are not allowed in Utah. Telemedicine visits are allowed to renew a medical cannabis card, but not allowed for the initial appointment.

Vermont

Licensed medical marijuana dispensaries can remain open.

On March 24, 2020, Gov. Phil Scott issued an order requiring businesses that are not critical to health and safety or economic and national security to suspend in-person operations. Although the order does not explicitly address cannabis businesses, a state official later stated in an e-mail that medical marijuana dispensaries may remain open but “are strongly encouraged to do phone and on-line orders only.”

Washington

Licensed cannabis businesses can remain open.

On March 23, 2020, Gov. Jay Inslee issued an order to close all non-essential businesses and that all residents are to stay at home. That order listed all workers in the cannabis supply chain as essential. Cannabis retailers, distributors, cultivators, manufacturers, and testing laboratories can remain open. The Washington Liquor and Cannabis Board also issued an order requiring cannabis businesses practice social distancing and not allow customers or employees within six feet of each other. The Board amended its regulations to allow for medical cannabis stores to deliver patients their medications through curb-side pickup. The patients must have a valid medical recommendation. Curb-side pickup is still unavailable for recreational stores. Telemedicine visits are allowed to renew medical cannabis cards, but not for the initial visit. On March 24, 2020, Gov. Inslee issued another order that waived all penalties for late tax payments from cannabis businesses. The Governor did not waive tax payments, but cannabis businesses will not be assessed a penalty for late tax payments.