|Title||One in Six States Allow Marijuana in Schools|
|Preview||One in Six States Allow Marijuana in Schools|
One in Six States Allow Marijuana in Schools
This article was originally published in 2014 and has been updated to cover recent changes to marijuana laws and policy and expanded to include student use of marijuana on campus.
When this article was originally penned in 2014, only four states had legalized recreational marijuana and 33 states (along with the district of Columbia and Guam) had enacted legislation or constitutional protections related to cannabis use. According to the National Conference of State Legislatures, the count of recreational states has risen to nine and 44 states have enacted legislation or constitutional protections along with Districts of Columbia, Guam, and Puerto Rico for some level of marijuana use. Currently 90% of states have some legislative mechanism for the use of cannabis. Eight states now have student protections for the use of medical marijuana at school. What hasn't changed is the federal government's view of marijuana. It is still illegal to use and is considered a level 1 controlled substance by the federal government—a drug with no medical value.
State Laws Summary
Medical marijuana legal—Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbiai, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Vermont, Washington, West Virginia.
Recreational marijuana legal—Alaskaii, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington.
States offering some employment protections for marijuana use—Arkansas, Colorado, Delaware, Arizona, Minnesota, Connecticut, Illinois, Maine, New York, Rhode Island, Nevada, West Virginia.
States maintaining/allowing for student medical marijuana use in school—Colorado, Delaware, Florida, Maine, New Jersey, Pennsylvania, Washington, West Virginia
Limited medical marijuana (low-level THC)/research use legal—Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, Wyoming.
Overview of State Employment Laws
Most of the state/territory laws allowing recreational or medical marijuana do so in a way that decriminalizes its use and possession, but still allows employers the right to limit or prohibit employee use. However, there are a number of states that provide protections to an employee's use of marijuana. Member schools need to be aware of these state-specific requirements.
Arizona, Delaware, and Minnesota—Employers generally cannot penalize employees solely for a positive drug test of marijuana unless they used, possessed, were impaired, or were under the influence while on the job. Schools can adopt more prohibitive standards if done to avoid losing a monetary or licensing-related benefit under federal law. Additionally, the employee may be liable if he or she undertakes any task while under the influence that would constitute negligence or professional malpractice. However, the problem is that none of these states define how inebriated one has to be in order to be considered under the influence.
Arkansas—Employers cannot take disciplinary action solely on the basis that the employee or prospective employee had a medical marijuana license or is the primary caregiver of one with a license or possesses the legally allowed amount of marijuana under the law. The employee shall not undertake any task while under the influence that would constitute negligence or professional malpractice. Employers do not have to accommodate the use of marijuana in the workplace or an employee being under the influence while at work. Schools cannot refuse to enroll students solely for being a caregiver or qualifying patient under the law unless doing so would but the school at risk of violating federal law. Law does not allow for possession or use of marijuana in school buses, daycare centers, preschools, K-12 schools, or colleges/universities. Smoking of marijuana is prohibited in the presence of anyone under the age of 14.
Colorado—Colorado has a Lawful Off-Duty Activities Statute designed to protect an employee's after-hour lawful activities from discipline by their employer. The Colorado Supreme Court has ruled this statute does not affect protected marijuana use. (See discussion below.)
Connecticut—Employers can discipline employees for being under the influence during work hours, but generally they cannot discriminate against medical marijuana users. Schools can also adopt stricter rules if they are related to federal law or funding.
Guam, North Dakota—No right to use marijuana on school property or school buses.
Illinois—Employers cannot discriminate solely on the basis that the employee or prospective employee has a medical marijuana license or is the primary caregiver of one with a license, unless it is related to general law or funding. The law does not "prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug-free workplace provided the policy is applied in a nondiscriminatory manner."
Maine—Employers cannot discriminate solely on the basis that the employee or prospective employee has a medical marijuana license or is the primary caregiver of one with a license. Schools can also adopt stricter rules if related to federal law or funding. Additionally, the employee may be liable if he or she undertakes any task while under the influence that would constitute negligence or professional malpractice. Schools can prohibit "ingestion of marijuana" while on the job, along with working while under the influence.
Nevada—Employers must attempt to make a reasonable accommodation for the medical needs of a medical marijuana employee, but an employer does not have to accommodate if to do so would pose a threat or danger to persons or property, create an undue hardship on the school, or prevent the employee from fulfilling any and all job duties. Schools do not have to allow the use of marijuana in the workplace nor do they have to modify the job requirements for the affected employee.
New York—Medical marijuana patients are considered disabled as applied to state discrimination laws. However, New York law does not legalize the smoking of marijuana, only other types of medicinal use as to be determined by a state agency.
Rhode Island—Employers cannot discriminate solely on the basis that and employee or prospective employee has a medical marijuana license. Employers can still enforce drug-free workplace standards. Additionally, the employee may be liable if he or she undertakes any task while under the influence that would constitute negligence or professional malpractice.
West Virginia—Employers cannot discriminate solely on the basis that an employee or prospective employee has a medical marijuana license. Employers are not required to make accommodation for the use of marijuana on their property nor do they have to allow an employee to be under the influence while at work. Employers are not required to do any act that would cause them to violate federal law.
State Law on the Use of Medical Marijuana in Schools
Colorado—A primary caregiver may possess and administer to a qualifying student medical marijuana in nonsmokeable form on the grounds of a preschool, primary or secondary school, or on a school bus or at a school event. All marijuana must be removed from the school, bus, or event after treatment. School district does not have to comply if federal funding would be lost. Public schools cannot discipline or deny enrollment solely because the student has a valid recommendation for medical marijuana. This law arguably likely applies only to public schools.
Delaware—A caregiver may possess or administer to a qualifying student medical marijuana on the grounds of a preschool or primary or secondary school, and the marijuana must be kept by that caregiver. No contractor or staff member of the school may administer the medical marijuana.
Florida—Public school board shall adopt policies and procedures allowing qualified students access to their medical marijuana; identify how it will be received, accounted for, and stored; also adopt policies to prevent other students from accessing the marijuana and limited access by staff. School staff are allowed to possess marijuana and limited access by staff. School staff are allowed to possess marijuana if for the treatment of a student under this policy.
Maine—Student cannot be denied eligibility to attend school solely because the child requires medical marijuana in a nonsmokeable form. A primary caregiver, designated under the medical marijuana regulatory structure, may possess and administer marijuana in a nonsmokeable form in a school bus or on grounds of a preschool or primary or secondary school to an enrolled minor student if that minor holds a written certification that the students qualifies as a patient to receive medical marijuana under the state standards. It is the opinion of ACSI that these provision likely would apply to all schools and not just public schools.
New Jersey—private schools shall develop a policy authorizing the primary caregiver to administer medical marijuana to a student while on school grounds attending a school event. Such a policy at a minimum must:
Pennsylvania—Medical marijuana was signed into law April 2016. At that time the statute gate the Department of Education eighteen months to promulgate regulations on the possession and use of medical marijuana by a student or staff member on the grounds of a preschool or primary or secondary school. The Department of Human Services was also given an 18-month window to promulgate regulations on the possession and use by a child or staff member in a childcare facility licensed or operated by the Department of Human Services.
At the time of printing, neither department had provided proposed regulations; however, they have provided the following statement:
The Pennsylvania Departments of Health and Education support the administration of medical marijuana under a Safe Harbor Letter [Safe Harbor Letter is a short-term identification process to be replaced with medical marijuana identification cards in the future] to students with serious medical conditions, and the maintenance of a safe environment for other students while on the property. THe below guidance provides information so school administrators to assist them in developing policies for the administration of medical marijuana on school property.
Recommended Guidance: A parent, legal guardian or caregiver may administer medical marijuana to their child/student on school premises provided that the parent, legal guardian or caregiver: (1) provides the school principal with a copy of the Safe Harbor Letter; and (2) notifies the school principal, in advance, or each instance on which the parent or caregiver will administer the medical marijuana to the child/student. The school principal shall provide notification to the school nurse in each instance a parent or caregiver will be administering medical marijuana to the child/student as well. The parent/caregiver shall follow all school protocols applicable to visitors to the school during the day.
A parent, legal guardian or caregiver shall bring to the school and administer the medical marijuana to their child/student without creating a distraction, and shall promptly remove any excess medical marijuana and related materials from the school premises after the administration of medical marijuana is complete. The school shall provide a secure and private location for the parent/legal guardian/caregiver to administer the medical marijuana to the student.
Students themselves shall not be permitted to possess any form of medical marijuana at any time on school property or during any activities on school property.
Expiration: The recommended guidance will remain in effect until the Pennsylvania Department of Education promulgates regulations regarding the possession and use of medical marijuana in the commonwealth's schools.
Washington—Schools are not required to accommodate medical use of marijuana but are permitted to allow minors to use medical marijuana on school grounds if the student meets the school's policy.
West Virginia—Medical marijuana was made legal in April 2017. At that time the statute gave the Department of Education until September 2017 t promulgate regulations on the possession and use of medical marijuana by a student or staff member on the grounds of a preschool or primary or secondary school. The Bureau for Public Health was also given the same deadline to promulgate regulations on the possession and use by a child or staff member in a childcare facility licensed or operated by the Department of Health and Human Resources. However, the Bureau, by law, cannot issue medical marijuana cards to patients until 2019. Consequently the reader should not be surprised if guidance for schools and early education facilities do not come until a time closer to the 2019 deadline. At the time of printing, neither department had provided proposed regulations.
Developing Issues of State Employment Law
Cracks are forming in what was once an impenetrable view that employers could fire an employee for either medical or recreational use of marijuana regardless of state law largely because it is still illegal to use of possess under federal law. The examples below either ignore or sidestep the fact that marijuana possession and use is illegal on the federal level and instead just look to state laws on the allowed use of marijuana.
One case supporting a teacher's use of marijuana comes out of a Texas administrative law hearing. In January 2017 an administrative law judge (ALJ) gave an advisory opinion to the Texas State Board for Educator Certification after the agency had sought to suspend Maryam Roland's state teaching license for smoking pot while on vacation in Colorado. The suspension had come after Roland tested positive for marijuana at her school, which was in violation of district policy. The ALJ reasoned Roland had done nothing illegal since she only used marijuana while in Colorado as state that has legalized its recreational use. The ALJ likened it to spending time in Las Vegas gambling where gambling is legal, even though Texas has prohibited gambling, and then being punished for gambling. The State Board later dropped its suspension against Roland's teaching license based on the ALJ's advisory ruling. This case should have limited impact as it was limited to a Texas agency action, but what it does provide is a view into how other state or federal courts might view marijuana use by staff in the future.
Recently the Massachusetts Supreme Court ruled a disabled former employee could sue her past employer after she was fired for testing positive for marijuana even though she had a medical marijuana certification from her doctor and had informed the company she needed it for her disability. The court in Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017), ruled Cristina Barbuto could sue the company for employment discrimination based on her disability. Regardless of her medical marijuana use, the company had a duty to enter into an interactive accommodation process and to provide reasonable accommodations to her disability. The company did not do that. Further, the court stated it would be a lawful accommodation to allow employees to use medical marijuana off work premises, if not at work if the employer chose to do so. The court found that even though marijuana is illegal federally it was legal in Massachusetts, and it was unreasonable to have a complete ban against its medical use if doing so would be a reasonable accommodation since it would be the employee breaking federal law and not the employer. It should be noted this is a state court ruling, not a federal court, and this viewpoint is in the minority of the overall body of case law. Significant to schools is that Massachusetts expressly prohibits the medical and recreational use of marijuana on school grounds, and in addition there are more restrictive federal drug-free-school-zone laws.
In Coats v. Dish Network, 350 P. 3d 849 (2015), Brandon Coats was selected for a random drug test at his place of employment, Dish Network. Dish Network has a zero-tolerance drug policy, and when Coats tested positive for marijuana he was dismissed. Coats, who is a quadriplegic, had a medical marijuana license and claimed he never came to work under the influence of marijuana, nor did he ever use it at work. He claimed he only used the drug in the evenings to help with chronic pain from the accident that left him disabled. Coats' defense is that his drug use should be protected under Colorado's Lawful Off-Duty Activities Statute which protects employees from disciplinary action from their employer for participating in lawful activities on their own time. At all three levels (trial, appeals court, and Colorado Supreme Court) all three courts sided with Dish Network. The key element of these rulings came down to what the courts considered "lawful." Coats tried to argue that lawful only applied to Colorado law; however, the courts did not accept that definition and said as long as the use of marijuana was still unlawful under federal law the statute did not protect the use of marijuana, even medical marijuana, and Dish Network had the right to terminate Coats for violating its drug policy.
One question not as relevant to employers, but relevant to employees nonetheless, is implications of having state-legalized marijuana in a drug free school zone. drug-free school zones are a federal attempt to significantly increase fines and sentencing times for those who are within a specified zone (usually 1,000 feet) of a school with an illegal drug. It seems that this is yet to be settled in the law, and there are inconsistencies arising on how each state, and even each community, handles this issue. Some marijuana statutes may address this issue as a zoning requirement for dispensaries, but for those who have an individual state-granted right to grow and carry pot there is some gray area here, and individuals would do well to stay clear of school zones.
If an employee indicates that he or she has a medical marijuana license, then it raises question of whether that person is also covered under the Americans with Disabilities Act (ADA), or a similar state statute, requiring reasonable accommodation for the underlying medical condition that led to the medical marijuana license. This is particularly a concern in New York (see above), where the statute automatically defines anyone with medical marijuana license as disabled. This analysis is separate from whether the employee ever used marijuana, brought it to work, used it at work, or was under its influence at work, this violating the employer's policies on drugs in the workplace. Granted, many would not get here, as a school would potentially have separate and prior grounds of termination for violation of the school's drug policies, but there are situations in which the school would have to go through this analysis. even in the employee has a valid request for accommodations to use medical marijuana, employers likely do not have to provide this accommodation as the use of medical marijuana is still a federal crime.
Federal Administrative Law
To date, the Department of Justice, Drug Enforcement Administration, Department of Treasury, Department of Agriculture, the National Labor Relations Board, and the Department of Transportation have all released official guidance on how the state legalization of marijuana will be treated by each agency, and not all of them are in agreement with each other.
The Department of Justice, in a 2013 memo, indicated it will defer to state regulation of marijuana as long as such legalization efforts have robust enforcement structures and regulation.
The Department of Transportation (DOT) has authority over commercial driver's license standards (including school bus endorsements). In response to the Department of Justice's slacking enforcement of federal marijuana laws, the DOT has twice posted official notices on the DOT's continued strict enforcement of its drug and alcohol policies, including a complete prohibition for medical or recreational marijuana.iii Schools should make bus drivers aware of the higher standard the DOT has placed on them and the school.
Takeaways for the Christian School
The reality is few private schools, unless they specialize in educating students with severe special needs, will likely face the medical marijuana question from their student body. Medical marijuana is largely confined to terminal or chronic and debilitating conditions which (thankfully) few suffer from. The larger issue is the recreational use of marijuana by both students and staff. Regardless, schools should be aware of the issues and this new territory that is beginning to require accommodations for students and, in some cases, potentially staff. Regardless, schools should be aware of the issues and this new territory that is beginning to require accommodations for students and, in some cases, potentially staff. The conversation is shifting, and schools need to be ready to discuss both the school's own policy concerns as well as the educational aspects.
The line between medical and recreational use of marijuana is a bit blurred. In all the referenced states there is legal and illegal possession and use of marijuana, just as there is legal and illegal use of tobacco and alcohol. You will notice that all the laws requiring the school to provide accommodation for student use also allow the school to require an authorized caregiver to possess and administer the marijuana. Most schools, especially public schools, do not want to be in possession of or administer marijuana for legal reasons. Specifically, the federal government still views any use or possession of marijuana as illegal and thereby could potentially put a public school's federal funding at risk if the federal government were ever to enforce federal drug laws. Also, most state medical marijuana programs only allow the use and possession of marijuana to specific individuals who have been authorized by the state to do so. It is possible a school administrator might be in violation of state medical marijuana laws by possessing a student's legally obtained marijuana, and certainly runs the risk of violating federal law. If your school decides to allow the use of medical marijuana on campus, the school should never be in possession of the drug or administer it; that should always fall to a caregiver.
The blurring of the lines extends down to the student population as well. In much the same way that students often do not grasp the legal gravity of sexting, a similar perspective toward marijuana is happening with younger generations that have only known the quasi-legalization and easy access to pot in their lifetimes. In a real example from a student in Denver,iv the student was caught up in a drug bust operation at his school by police. On the student were several baggies with the names of friends written on each baggie to whom he intended to distribute them. The 15-year-old was intending to pass the marijuana along to a few friends and maybe make a few dollars after getting the marijuana from an older student—no harm, no foul. The police saw it differently and charged him with two felony counts of intent to distribute and intent to distribute to a minor. Another student shared that dispensaries were as common as Starbucks, and it makes students wonder what they are missing as well as sending a message that it cannot be that bad if it is so widespread.
Clearly this is a fluid area of the law, and in the years to come many of these unknowns will work their way through. Until then there is some limbo, particularly if your state has an express protection for employee pot use. Christian schools should look to their policies and handbooks to specifically identify lifestyle statements and other related standards for review. If the school instituted such requirements in part because of the school's religious convictions, the school must ensure that its rationale is part of te policy, including supporting scriptural references.
If the school is in a state where marijuana is legalized, it will need to explicitly list marijuana as a prohibited substance. For most it will be akin to how many evangelical Christians have treated legal smoking and consumption of alcohol. If your school is in one of the states discussed above, with an explicit protection for pot users, then the school will need to do a bit more digging to ensure its policy doesn't run afoul of state law. Schools that are in an affected state should also consider adopting a random drug-testing policy for students and staff.
Currently Christian schools have bot a legal (violation of federal law) and spiritual case to prohibit the use of marijuana by staff and at least recreational marijuana, if not medical marijuana, by students. The day will likely come when the legal justification will go away (national legalization of marijuana) and schools will only be left with a spiritual justification, just as in the use of tobacco and alcohol. Your school policies should be able to speak to both the legal and spiritual justification.
Schools should also consider what if any distinction they can make between the medical use of marijuana and the recreational use of marijuana. Are there and should there be some limited uses of medical marijuana for the treatment of legitimate conditions that your policies allow for? The questions will be asked, so you should have an answer before then.
Beyond the legal and faith basis, every school should have legitimate concerns about the influence marijuana-using staff may have on students and the impact marijuana itself has on student development and achievement.
As already discussed above, many of the state-specific protections for employees have exemptions if federal dollars or licenses are on the line. While Christian schools don't directly contract with government entities, some may have to sign off on assistance programs like E-Rate or the National School Lunch Program or have requirements for SEVP (Student and Exchange Visitor Program) certification (I-20 status). These require the school to be in compliance with federal laws and thereby with stricter policies on marijuana use.
i In 2014 D.C. residents passed Initiative 71 that would have allowed for recreational marijuana; however, Congress has continually blocked the District's ability to act on this issue.
ii While legislation passed in 2014, the state has yet to adopt a complete body of regulation that might allow more widespread use in Alaska.
iii DOT Recreational Marijuana Notice, December 3, 2012, and updated May 27, 2014. See https://www.transportation.gov/odapc/dot-recreational-marijuana-notice, Medical Marijuana Notice, October 22, 2009, and updated June 20, 2017. See https://www.transportation.gov/odapc/medical-marijuana-notice.
iv "Under Siege: Marijuana and Colorado Schools," Rocky Mountain PBS News, October 12, 2016. Last accessed on August 2, 2017. http://www.rmpbs.org/blogs/news/under-siege-marijuana-and-colorado-schools.
Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.
Association of Christian Schools International
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