Given the legalization of marijuana for recreational use in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington, and the District of Columbia, coupled with the legalization of marijuana for medical use in 28 states, some public school teachers, administrators, and classified employees in these states might wonder if they can smoke marijuana during nonduty hours. Educators may believe that because they can legally drink alcohol on the weekends, it should also be permissible to smoke marijuana, as long as it does not interfere with their job duties. This is not always the case and, in fact, there is some controversy involving school employees’ use of marijuana.
Despite the various marijuana laws that different states have enacted recently, the use of marijuana remains a federal criminal offense for educators. The Controlled Substances Act (CSA), adopted in 1970, made it unlawful to possess marijuana. Thus, even if a school district is located in a state that has legalized marijuana, this federal act requires employees to be drug-free. Specifically, schools that are direct recipients of federal funds must follow the Drug-Free Workplace Act of 1988. Also, it is important to note that there is not yet a medical marijuana exception under the CSA, but the U.S. Department of Justice announced that it would not criminally prosecute those with debilitating conditions who use medical marijuana in accordance with state law. With the new administration, there is a chance this position may change in the future.
Recreational Marijuana Use
In states where marijuana is illegal, school personnel can be disciplined for using it. Earlier litigation helps illustrate some of the legal issues involved. In Chicago, for instance, a teacher was fired after being arrested and pleading guilty to marijuana possession. The trial court in 1981 ruled that the school district had demonstrated a clear relationship between the teacher’s possession of marijuana and his fitness to teach. The court reasoned: “We do not doubt that knowledge of a teacher’s involvement in illegalities such as possession of marijuana would have a major deleterious effect upon the school system and would greatly impede that individual’s ability to adequately fulfill his role as perceived by the Board.”
In North Carolina, a teacher was dismissed for possessing marijuana in his home, even after the criminal charges were dropped on a technicality. The court noted that marijuana plants and paraphernalia were found in his home and that he had admitted to smoking marijuana. Thus, even though the judicial charges were dropped as a result of an unreasonable search, school officials could still take disciplinary action.
In the eight states that have legalized recreational use of marijuana, educators argue that it would be irrational to discipline them for lawful activities during their off-duty hours. Educators should know that school officials may still be able to control this type of out-of-school conduct, even if recreational marijuana is legal in the state. Although many state laws do not explicitly discuss the use of marijuana and employment, there are some laws that defer to the decisions of the employer. For example, Amendment 64 in the Colorado Constitution states that “nothing in this Section is intended to … affect the ability of employers to have policies restricting the use of marijuana by employees.” Also, some laws do not forbid employers from screening for marijuana use, even if used legally within the state. Some state privacy laws, however, do impose limitations on drug tests.
Medical Marijuana Use
Twenty-eight states and Washington, D.C., have passed “medical” marijuana laws. A few illustrative decisions suggest that employees have not always been successful with their legal claims when they have been disciplined after using marijuana for medical reasons. In Coats v. Dish Network (2015), an employee who was a quadriplegic and prescribed marijuana for muscle spasms was terminated after testing positive for tetrahydrocannabinol (THC) during a random drug test. The Supreme Court of Colorado found that the employee was not subject to any protections for his off-duty use of marijuana because this activity remained illegal under federal law.
In some cases, employees have argued that employers engaged in disability-based discrimination when the employee was not permitted to use medical marijuana. With regard to employees who qualify under the Americans with Disabilities Act (ADA), for example, the ADA does not provide protections because the law does not apply to drug users.
Some states have adopted laws that mirror the ADA, but a majority of these state laws fail to clearly address the use of marijuana for medical purposes. For example, the California Supreme Court ruled that a state law that permitted the use of medical marijuana did not address the rights of employers and employees. Thus, an employee could not sue his former employer for disability discrimination. The court reasoned that the California legislature never addressed the use of medical marijuana in the employment context within the state law. Instead, the law only shielded users from criminal liability under state law. Likewise, the Oregon Supreme Court held that an employer was not required to accommodate an employee for his use of medical marijuana, even though Oregon had a state law that mirrored the ADA. The court justified its holding by finding that marijuana was illegal under federal law.
Lessons for Administrators
Due to the inconsistency between state and federal law, and the fact that some state laws do not adequately address the use of marijuana in employment, it is not surprising that school personnel are not certain about their rights. Consider these recommendations:
- Training for all school district employees related to the use of marijuana should occur at least annually.
- School boards should establish clear policy regarding the possession and use of marijuana products on school grounds.
- School boards should also establish policy related to the possession, use, and cultivation of marijuana by employees during personal time.
Unanswered Legal Questions
Keep in mind that there are also several unanswered legal questions on this issue.
- Will school districts lose federal funding if board policy considers marijuana use, either for medical or recreational purposes, a legal activity in states where the practice is legal?
- If school district officials begin to test employees to ensure they are complying with board policy, what level of use would constitute impairment for an employee?
Given that marijuana use will likely increase as more states enact laws permitting such use, the cases discussed demonstrate the necessity of ongoing communication with educators about marijuana use. Administrators working in states where marijuana use is legal should take the necessary steps to clearly inform all employees of permissible and impermissible actions around the use of marijuana.
Editor’s Note: This article is to inform readers about legal developments affecting schools. It is not intended as, nor should it be considered, a substitute for specific legal advice.
Suzanne E. Eckes, PhD, JD, is a professor at Indiana University in Bloomington. She has published widely on school legal matters. She is the president-elect of the Education Law Association. Spencer Weiler, PhD, is an associate professor at the University of Northern Colorado in Greeley. Weiler’s research interests include school law, school finance, and effective leadership.