Effective July 1, 2021, Connecticut became one of a growing number of states to legalize the recreational use of marijuana. Under this new law, it is now legal in Connecticut for individuals age 21 or older to possess, use, or otherwise consume marijuana or marijuana products, subject to certain restrictions and limitations. As a result, many independent schools are in the process of determining if and how this new law will impact current policies and practices, particularly as related to faculty and staff who may drive students as part of their job responsibilities. Below is a brief summary of some key aspects of the new law and responses to frequently asked questions from independent schools regarding the implications of the new marijuana law in Connecticut.
Key Aspects of the Law
Though the law contains provisions to regulate the sale of marijuana, of primary interest to schools are the provisions related to the possession and use of recreational marijuana by employees. Many of these workplace provisions do not go into effect until July 2022. However, it is important for independent schools to recognize that the law exempts certain employers, including independent schools, from many of these workplace requirements, including the requirement to adopt workplace policies to address cannabis possession or use. This exemption provides greater flexibility for independent schools to develop employment policies regulating the possession and use of recreational marijuana, particularly on their school campuses.
Therefore, while independent schools may be exempt from the legal requirement to adopt workplace policies in this area, it is still advisable for schools to draft or revise employee policies to ensure they adequately reflect the current law and clearly communicate the school's expectations and policies regarding both recreational and medicinal marijuana in the workplace. Boarding schools with residential faculty, and any schools that currently use faculty/staff to drive students, will be particularly interested in ensuring they are communicating clearly to their employees about the rules for employee use and possession of recreational marijuana. It will be important for all independent schools to put all faculty and staff on notice regarding the school's expectations and requirements well in advance of the new school year.
Is recreational cannabis use legal for everyone, without limit?
No. The law generally allows only adults age twenty-one (21) or older to possess or use cannabis recreationally, up to specified limits. This permissive use of recreational marijuana supplements existing law that already allows for the palliative use of marijuana by qualified patients. This new law establishes penalties for adults who possess more than the legal limits, including fines of $100 for the first offense and $250 for a subsequent offense. For possession of larger amounts, an individual can face a fine of $500 for the first offense and, for subsequent offenses, a Class C misdemeanor, punishable by up to three months in prison.1
This new law also establishes various penalties for possession of cannabis by minors, depending on factors such as the individual's age, whether it is the minor's first or subsequent offense, and the amount of cannabis the minor possesses.
Can individuals smoke, possess or use cannabis in school buildings and on school grounds?
Effective October 1, 2021, the law expands the existing ban on smoking on school grounds by expressly prohibiting smoking (or vaping) marijuana on school grounds or in "any area" of school buildings or facilities under the school's control. Notably, however, the law itself does not go so far as to prohibit the possession of marijuana or its recreational use on school grounds. Given that current law specifically prohibits even qualified patients from ingesting marijuana for medicinal reasons on school grounds, schools will want to develop clear policies that articulate their expectations for faculty, staff and others regarding the possession of marijuana on campus generally, as well as the recreational use of marijuana (other than smoking) on school grounds.
In addition, while this new law does not specifically prohibit the possession, use, or consumption (other than smoking) of recreational cannabis in school buildings or on school grounds, schools should be mindful that any entities receiving Federal grants must provide a drug-free workplace, and marijuana (cannabis) remains a controlled substance under Federal law.
Can the school prohibit cannabis use by employees at work?
Yes. As noted above, the law prohibits anyone, including school employees, from smoking, using electronic nicotine or cannabis delivery systems, or vapor products in facilities under the school's control, in a school building, or on school grounds.
Like any employer, schools can prohibit employees from being under the influence of marijuana while working (including when working remotely) or when reasonably expected to be performing job responsibilities, including when faculty and staff are on call or otherwise on duty, such as overnight duty in a dorm.
As exempted employers, independent schools also have wide latitude to implement rules that prohibit the possession, use and consumption of marijuana, beyond what is prohibited by the law. For example, a school may elect to prohibit possession and use of marijuana on school grounds, subject only to provisions relating to medicinal use. As an exempted employer, schools' policies may also put employees on notice that they may be disciplined even for off-duty use of marijuana and schools may refuse to hire new employees based on prior use of marijuana. Finally, given the flexibility afforded school employers, schools can also penalize an employee or refuse to hire a prospective employee who tests positive for THC, including an employee who tests positive as a result of the random drug testing required for anyone driving a student activity vehicle.
Despite this latitude, schools must, however, continue to allow qualifying patients to possess palliative marijuana, subject to statutory limits, while at work. Notably, such qualifying patients are still prohibited from ingesting marijuana in the workplace, on school grounds or in a dormitory, on a school bus or any other moving vehicle, and in the presence of any person under the age of eighteen (18). Therefore, when adopting policies on this issue, schools should carefully consider their positions regarding recreational and palliative use of marijuana, so as not to run afoul of the state law prohibiting employers from penalizing an employee solely on the basis of the individual's status as a qualifying patient.
Can the school prohibit marijuana use by employees outside of work?
Schools have discretion to take adverse employment action against employees for using recreational marijuana, even if they do so outside of work, off of school grounds, and within the bounds of the law, whether or not they have a written policy for marijuana use. To be sure, as exempted employers, independent schools can refuse to hire or take disciplinary action based on an employee's possession, use or consumption of recreational cannabis inside or outside the workplace, including before employment, with or without a policy in place. Notwithstanding their status as exempted employers, however, schools are well advised to adopt a written policy explaining their expectations and requirements for employees, and ensure that applicants and employees are given proper notice of such policy. When developing such policies, schools are reminded that they cannot refuse to hire, penalize, or discharge an employee based on an individual's status as a qualifying.
Can independent schools still require drug testing of employees?
Independent schools can and, in some cases, must require employees to submit to drug testing, just as they did prior to passage of this law.
First, a school may require an employee to submit to a urinalysis drug test if it has reasonable suspicion that an employee is under the influence of drugs or alcohol, which adversely affects or could adversely affect the employee's job performance.
In addition, schools may, and sometimes must require employees to submit to pre-employment and random urinalysis drug tests in certain circumstances. For example, an independent school must, after providing written notification at the time of application, require employees who will drive school buses or student transportation vehicles to submit to (1) pre-employment urinalysis drug tests and (2) subsequent random urinalysis drug tests, in accordance with state and federal law. Importantly, federal law continues to classify marijuana as a controlled substance.
If a prospective or current employee receives a positive urinalysis drug test result and a confirmatory positive test result using a second urinalysis drug test that meets statutory requirements, an employer cannot employ that individual as a driver for two years. Schools are advised that these testing requirements, and potential penalties, continue to exist despite the legalization of recreational marijuana. Therefore, it is important for schools to communicate this information to current and prospective employees so that anyone who will be required to drive students as part of their job understands that even recreational use of marijuana may have adverse employment actions.
What should be included in a school's policy regarding marijuana?
As noted above, schools are advised to draft or update their employment policies to account for the legalization of recreational marijuana, including how they will address (1) use of recreational marijuana in the physical workplace, including in faculty residences; (2) use of recreational marijuana in the remote workplace; (3) use of recreational marijuana outside of the workplace; and (4) drug testing of employees. As noted above, the school's policy should also consider and address how these rules will do
1. These penalties apply when an individual possesses at least five ounces of cannabis plant material and/or an equivalent amount of cannabis products or eight ounces of cannabis and/or the equivalent amount of cannabis products in a locked container at home or in a locked glove box or trunk of a motor vehicle.
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