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A School District’s Practical Guide to Navigating Issues Related to Recreational Cannabis

By January 29, 2020January 31st, 2020News, The Extra Mile Newsletter

Marijuana is legal. Now what?

What can you do?

  • Employers may still implement and enforce a zero-tolerance policy.
  • No possession or use of cannabis on school grounds, unless under Ashley’s Law or the Compassionate Use of Medical Cannabis Act
  • Discipline employees who violate your employment policies and/or workplace drug policy.
  • It is still illegal for an individual under the age of 21 to possess or use cannabis, thus student discipline remains basically unchanged.

 What can’t you do?

  • Refuse to hire based solely on an applicant’s positive drug test for THC (unless for a safety-sensitive position, i.e. a school bus driver or school resource officer).
  • Discipline an employee for use of legal cannabis outside of the school environment that does not lessen his or her ability to perform the duties of their job.
  • Discipline an employee for being impaired or under the influence of cannabis without affording the employee a reasonable opportunity to contest the basis of the determination.

But it isn’t that simple, is it?

  • The biggest issue employers currently face is that,unlike alcohol, there is no immediate test to detect cannabis use. An employee may have legally ingested cannabis in the evening or over a weekend while off school grounds and in the comfort of their own home, but that employee would still test positive on Monday (or even two to three weeks after the fact) if asked to submit to a test.
  • Bottom line: a positive drug test standing alone is no longer sufficient to warrant discipline of an employee.
    • Context matters.
    • You MUST have “a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position…” and you MUST document your observations.

 What to do?

  • Create a “reasonable suspicion checklist” that provides a uniform protocol for documenting signs of impairment district-wide.
    • Collaborate with unions in your district as to what this checklist will look like, in order to avoid issues down the road.
  • Provide training to all administrators/supervisors on what to look for and how to document signs of impairment.
  • Review and update all Board policies and procedures touching on drugs and alcohol in the workplace, visitors on school premises, the American with Disabilities Act, Ashley’s Law, etc.

Other Potential Issues

  • What about employees who are “on call?”
    • Under most policies, employees are prohibited from possession, use, or being impaired or under the influence of cannabis while on call.
    • Under the Cannabis Regulation and Tax Act(“CRTA”), an employee is deemed to be “on call” when such employee is scheduled with at least 24 hours’ notice by his or her employer to be on standby or otherwise responsible for performing tasks related to his or her employment.
  • But what about central office and building administrators? Are they always on call?
    • Each respective Board may treat this differently. We do not believe that it was the General Assembly’s intent to effectively prohibit an entire group of employees from recreational use of marijuana.
      • Did the administrator show up to a school function or on school grounds and demonstrate the type of articulable symptoms noted above?
      • Address these cases on a case-by-case basis. 
  • What about CBD?
    • It is derived from hemp and is commercially available.
    • Because it is derived from hemp, it should contain only 0.3% THC or less and should not lead to a high.
    • However, there is very little regulation of these products, so without testing, it is difficult to know whether a CBD product contains THC. It can build up in a person’s system and lead to a positive test.
    • Bottom line: Absent signs of impairment, treat CBD as you would any other over-the-counter medication.
  • What about an employee who is a qualifying patient under the Illinois Compassionate Use of Medical Cannabis Program?
    • School districts may deny the use of marijuana or cannabis-infused products on school grounds as a reasonable accommodation, as the CRTA provides for a zero-tolerance policy and cannabis is still an illegal controlled substance under federal law. But be aware that this could potentially lead to litigation.
    • As always, an employee should still be able to use any medically prescribed cannabis product outside of school hours and off District premises, so long as they do not manifest any signs of impairment at work.
      • Hypothetical: a qualifying employee utilizes a transdermal, cannabis-infused patch with a low-dose, 72-hour extended release in order to control a seizure disorder. Can the employee wear the patch at school as an accommodation?
      • Answer: it depends. If the employee does not manifest signs of impairment, this could be a reasonable accommodation. However, absent litigation that leads to a clear answer from the courts or additional regulatory guidelines, we recommend considering each situation as it arises on a case-by-case basis.
  •  Amendments to Ashley’s Law
    • School nurses and/or school administrators may now administer a medical infused cannabis product to a student who is a registered qualifying patient while on school grounds, at a school-sponsored activity, or while on the school bus.
      • However, the school cannot mandate that a school nurse or school administrator administer a medical cannabis product.
      • Before administering, the parent must provide written authorization, and the school nurse or school administrator must annually complete the training curriculum developed by the DPH.
    • Students can also self-administer, so long as it is under the direct supervision of a school nurse or school administrator and does not create a disruption to the school’s educational environment.