In the wake of the coronavirus (COVID-19) public health emergency, New Jersey has taken unprecedented measures to marshal its available resources to secure the safety and health of its residents. First, the State created the New Jersey Coronavirus Task Force, chaired by the Commissioner of the New Jersey Department of Health, to coordinate the State's efforts to prepare for and respond to the public health hazards associated with COVID-19. Governor Murphy declared a State of Emergency on March 9, 2020. In addition, gatherings of individuals, such as parties, celebrations, or other social events are cancelled, work-from-home mandates are in place where feasible for both essential and non-essential employees, and an emphasis on practicing social distancing when in public went into effect. In short, New Jersey's emergency response has and will continue to adapt to this rapidly evolving emergency.

On March 21, 2020, Executive Order 107 (the Order) became effective. The Order, among its various mandates, recognizes certain retail businesses as "essential" to daily life and others as "non-essential." Under the Order, essential businesses are authorized to continue to operate to the public, and non-essential businesses have been ordered to be shut down. Fortunately, alternative treatment centers (ATCs) "that dispense medical marijuana" have been categorized as "essential."  Other "essential" businesses include grocery stores, convenience stores, pharmacies, pet stores, liquor stores, hardware and home improvement stores, and medical supply stores.

Pursuant to the Order, essential retail businesses that remain open are required to implement and abide by social distancing guidelines as recommended by the CDC and DOH. These guidelines include reasonable efforts to keep customers at least six feet apart, and to sanitize common surfaces such as door handles, counter tops, elevator buttons and surfaces. Additionally, wherever practicable, essential retail businesses must provide pickup services outside or adjacent to their stores for products that customers order online or by phone.

To improve patient access to ATCs and to facilitate the adherence to the terms of the Order, on March 23, 2020, the New Jersey Department of Health (NJDOH) announced regulatory waivers and changes to facilitate safe ATC operations during the pandemic. The waivers include:

  1. Waiving the requirements of N.J.A.C. 8:64-7.9 and N.J.A.C. 8:64-13.6. This waiver permits ATCs to: |
    • Dispense cannabis to qualified patients and caregivers in their cars on the exterior premises of the ATC, including any parking lots and adjacent sidewalks.
    • Have patients order their products in advance; provided the ATC has appropriately labeled the products prior to dispensing on the exterior of their premises.
    • Provide to patients and caregivers a pick-up time in order to reduce traffic around the ATC.
    • Conduct an in-person visual verification (through a car window) of the patient's registry ID card prior to dispensing (in order to avoid handling the ID card).

ATCs must continue to log all transactions and inventory in the registry in accordance with N.J.A.C. 8:64-9.3, N.J.A.C. 8:64-9.9 and other corresponding rules, and all transactions must still be conducted in a secure and monitored manner in accordance with N.J.A.C. 8:64-9.7.

In addition, if the ATC intends to dispense to patients and caregivers on the exterior of the ATC, the ATC must notify the municipality and the local police department in which it is located.

Lastly, prior to dispensing via curbside delivery, the ATC must provide the NJDOH with Standard Operating Procedures for the following:

• Taking orders, verifying registry ID and authorization, and taking payment;

• Logging the transaction in the registry and ATC inventory; and

• Security needed to accommodate the curbside delivery.

  1. Waiving the requirements of N.J.A.C. 8:64-11.4. This waiver permits an ATC to forgo the patient self-assessment of pain or primary qualifying symptom prior to the dispensing of medical marijuana, except that such an assessment is required for new patients, only if requested by the new patient or his or her caregiver and the assessment may be conducted by phone.
  1. Waiving the requirements of N.J.A.C. 8:64-1.2. This waiver reduces the $100 registration fee for an application for issuance or renewal of a registry identification card for all caregivers to $20 (but not the fee for patients). Caregivers are still restricted to acting as a caregiver for one patient.

In addition, on March 24, 2020, the NJDOH released temporary guidelines to enable faster on-boarding of new ATC employees. In particular, the NJDOH is now permitted to offer provisional authority for ATC employee applicants for a period of up to three months, provided certain conditions are met. These temporary guidelines can be found at the following link: Temporary Guidance Here.

We recommend that ATCs closely monitor the effects this COVID-19 pandemic has on their patients, and, if needed, communicate with state regulators as to any improvements that are necessary to properly care for patients.

Lisa Gora is an attorney at Wilentz, Goldman & Spitzer, in Woodbridge, who practices on the Cannabis Law, Health Law and Corporate teams. She also serves as secretary of the NJSBA's Cannabis Law Committee. Michael F. Schaff is co-chair of the Cannabis Law, Health Law and Corporate teams at the firm. He also serves as co-chair of the NJSBA's Cannabis Law Committee.