United States: Medical Marijuana On Campus: Barbuto's Impact On School Policies Banning Drug Use

Katrina Chapman is an associate and Paul G. Lannon Jr. is a litigation attorney in Holland & Knight's Boston office.

HIGHLIGHTS: 

  • In Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court concluded that refusing to accommodate an employee's use of medical marijuana to treat a qualified disability may be a violation of state anti-discrimination law.
  • The Barbuto court acknowledged that a reasonable accommodation may not be required if the use of medical marijuana would violate contractual or statutory obligations.
  • Schools must continue to comply with obligations to prohibit the use of illicit drugs under the federal Drug-Free Workplace Act and the Drug-Free Schools and Communities Act.

The Massachusetts Supreme Judicial Court recently ruled in Barbuto v. Advantage Sales and Marketing, LLC that an employee's use of medical marijuana to treat a qualified disability may be a reasonable accommodation under Massachusetts anti-discrimination law. The court's July 17, 2017, decision reversed the dismissal of an employee's disability discrimination claim, concluding that use of medical marijuana is not a facially unreasonable accommodation, even though marijuana remains a controlled substance under federal law. After Barbuto, Massachusetts employers must engage in an interactive process in response to employee requests for a reasonable accommodation to workplace policies prohibiting drug use. (See Holland & Knight alert, " Medical Marijuana Use May be Reasonable Accommodation Under Massachusetts Law," July 18, 2017).

Massachusetts schools too must evaluate the impact of Barbuto on policies prohibiting employee and student use of marijuana. As explained below, Barbuto does not diminish the obligations of schools to comply with federal laws and other contractual obligations, including the Drug-Free Workplace Act and the Drug-Free Schools and Communities Act.

Massachusetts Law Does Not Require Accommodation of Marijuana Use on School Grounds

Massachusetts legalized the medical use of marijuana in 2012. Individuals may obtain registration cards to verify that they have been prescribed marijuana to treat certain medical conditions. However, the law specifically exempts accommodation of "on-site medical use of marijuana" in any place of employment, on "school grounds" or in any "public place." The term "school grounds" is not defined but can reasonably be understood to include academic and residential areas, athletic fields and facilities, and other buildings and spaces used by schools in the performance of their educational missions.

Massachusetts voters approved recreational use of marijuana in 2016. As with medical use, marijuana for recreational use is limited to adults and in respect to school areas. Marijuana may not be possessed or consumed on the grounds of or within a school where children attend classes in preschool programs, kindergarten programs or grades 1 to 12. Employers may restrict the consumption of marijuana by employees at work, and property owners may also prohibit the consumption or sale of marijuana on properties they own, occupy or manage, with certain limitations for tenant lease agreements.

Compliance with the Drug-Free Workplace Act

In Barbuto, the court acknowledged that federal government contractors and recipients of federal grants are obligated to comply with the Drug-Free Workplace Act (DFWA), 41 U.S.C. §§8102(a), 8103(a) (2012). Pursuant to the DFWA, institutions receiving federal contracts in excess of $100,000 or receiving any federal grant, must prohibit the manufacture, use and distribution of controlled substances in the workplace. Under federal law, marijuana remains classified as a Schedule I controlled substance. The DFWA applies to most post-secondary schools and may apply to private secondary and elementary schools receiving federal grants.

Under the DFWA, institutions must make "a good faith effort" to maintain a drug-free workplace. This requirement is satisfied by establishing and publishing a policy prohibiting illegal drug use in the workplace, specifying actions that will be taken against employees for violations of the prohibition, establishing a drug-free awareness program, and requiring each employee to abide by the drug-free workplace policy and to notify the employer of any criminal drug statute conviction within five days. Failure to comply with the law is grounds for suspension or termination of the federal contract or grant.

Though the DFWA requires an institution's policy to prohibit explicitly the use of a controlled substance in the workplace, the law is silent as to adopting a policy concerning off-site conduct. It remains an open questions as to whether accommodations permitting medical or recreational use of marijuana off-site would violate the DFWA's mandate of a "good faith effort" to maintain a "drug-free workplace."

Compliance with the Drug-Free Schools and Communities Act

The Drug-Free Schools and Communities Act (DFSCA) and its implementing regulations require all institutions of higher education to submit certifications confirming the adoption and implementation of a drug prevention program as a condition of receiving any federal funding or assistance. Institutions must complete a review of the drug prevention program every two years to determine its effectiveness, implement changes as needed and ensure that sanctions are consistently enforced.

Pursuant to the DFSCA, an institution's drug prevention program must include, at a minimum:

  • annual distribution in writing to all employees and students a policy establishing standards of conduct that clearly prohibit the unlawful possession, use or distribution of illicit drugs and alcohol by students and employees on its property or as part of any of its activities
  • a description of the applicable legal sanctions under local, state or federal law for the unlawful possession or distribution of illicit drugs and alcohol
  • a description of health risks associated with use of illicit drugs and the abuse of alcohol
  • a description of any drug or alcohol counseling, treatment or rehabilitation or re-entry programs available to employees or students
  • a clear statement that the institution will impose disciplinary action for violation of the policy against use of illicit drugs and alcohol, as well as a description of those sanctions

An institution must, upon request, make records and information concerning its drug prevention program available to the U.S. Department of Education. The law permits the Department of Education to issue sanctions for noncompliance with the DFSCA, including requiring repayment of all forms of federal financial assistance during the period when an institution is found to have been out of compliance and the termination of any or all forms of federal financial assistance.

Like the DFWA, the DFSCA is silent as to adopting a policy concerning off-site conduct. "[A]t a minimum," the DFSCA requires that institutions of higher education prohibit the use by students and employees of illicit drugs and alcohol on campus, on any school-owned property or at any school activity.  

Takeaways and Considerations

Massachusetts schools should evaluate their current drug prevention programs in light of Barbuto and their obligations under the DFWA and DFSCA, as applicable. The Barbuto decision requires Massachusetts schools, as employers, to evaluate policies regarding marijuana use by employees and engage in an interactive process to assess reasonable accommodations. Nonetheless, Barbuto does not require schools to permit marijuana use on school grounds or to otherwise violate contractual or statutory obligations under the DFWA and DFSCA. Failure to comply with the DFWA and DFSCA risks a loss of federal funding, including funding for financial aid.

Employee requests for a reasonable accommodation to use medical marijuana off-site in compliance with Massachusetts law should be evaluated on a case-by-case basis and in consultation with legal counsel to evaluate compliance with state law and any competing federal or contractual obligations.

Schools must advise students and employees that marijuana use remains illegal under federal law and that Massachusetts state law does not require the accommodation of marijuana use on school grounds. Elementary and secondary schools may ban marijuana possession on school grounds. Consequently, employees and students who violate school policies on marijuana may be disciplined and face legal claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions