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It is now lawful in New York State for adults ages 21 and older to use marijuana. What do school leaders need to know about the state’s new law to prepare for the 2021-22 school year, which could be the beginning of a long, strange trip?

Gov. Andrew Cuomo signed the Marihuana Regulation and Taxation Act (MRTA) into law on March 31, 2021. The MRTA permits individuals who are 21 years old or older to possess up to three ounces of cannabis. They may also display, purchase, obtain or transfer without compensation up to the same amount of marijuana.

The sale of marijuana will not be lawful in the state until the Department of Health issues regulations for retailers, which is expected to occur sometime in 2022. Marijuana sellers will be required to obtain a state license from a new governmental entity called the New York State Cannabis Control Board.

The MRTA has many implications for school districts in New York State. School boards and superintendents should consider the three issues discussed below, which are affected by both state and federal law.

1. Restrictions on use of marijuana by students of all ages

Students need to know that use of marijuana by individuals under 21 is still prohibited under the MRTA. But what about students who are 21 or older? May they lawfully use marijuana in school or on school grounds? Generally, the answer is no.

The reason is that the MRTA created a new Article 222 of the Penal Law, which includes a provision that prohibits smoking or vaping cannabis in schools. Smoking/vaping on school grounds and in school vehicles is also prohibited under the same article of the Penal Law.

Off-campus use of marijuana by individuals 21 and older, including students, carries some level of protection under the MRTA. However, the law does not prevent schools from requiring students who participate in athletics or school clubs to sign a pledge to refrain from using drugs or alcohol at the risk of losing the privilege of participating in extracurricular activity.

2. Employee use of marijuana off school grounds

The MRTA generally protects employees who use marijuana recreationally while off duty, provided that (1) the employee is 21 or older, (2) the marijuana use occurred off-campus, and (3) the marijuana use was otherwise lawful. In the MRTA, the Legislature amended the Labor Law to protect the use of cannabis in accordance with state law while individuals are off premises and off duty.

However, certain employees are excluded from this protection, particularly those in safety-sensitive positions such as school bus drivers and bus mechanics. These individuals are subject to drug testing as required by federal law.

Moreover, the MTRA permits an employer to take disciplinary action against bus drivers and other employees in safety-sensitive positions based on a belief that:

1. The employer’s actions were required by statute, regulation, ordinance or other governmental mandate, or

2. The employer’s actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or

3. The individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.

Employees who are not in safety-sensitive positions may also be subject to disciplinary action if the employee is impaired by the use of cannabis in their job functions. For the disciplinary action to be lawful, the employer must be able to prove either that (1) marijuana use decreased or lessened the employee’s performance of the duties or tasks of the employee’s job position, or (2) the employee displayed specific, articulable symptoms of marijuana use that interfered with the employer’s obligation to provide a safe and healthy workplace as required by state and federal Occupational Safety and Health Act.

Why ‘Marihuana’?
New York’s new law authorizing use and sale of recreational marijuana is called the Marihuana Regulation and Taxation Act. Wondering about the “H”?

The answer is consistency in legal bill-drafting.

“The public health law and the penal law have always spelled it with an H,” Assemblyman Richard N. Gottfried, one of the sponsors of a medical marijuana bill told The New York Times in June 2007.

“That’s the official New York state statutory spelling.”

3. Reasonable accommodations for medical marijuana

School employees may request reasonable accommodations for use of medical marijuana, which has been authorized in New York since 2014. Title V-A of Article 33 of the Public Health Law authorizes use of medical marijuana by those who suffer from a “serious condition” including cancer, AIDS, ALS, Parkinson’s Disease and several other severely debilitating or lifethreatening conditions. Patients are required to obtain written certification from their doctor and a registration identification card from the New York Health Department.

The MRTA expands the availability of medical marijuana to permit qualified patients to possess a 60-day supply of cannabis, compared to the prior limit of 30 days. The MRTA also allows patients to grow their own marijuana and removes prior prohibitions on consumption of smokable forms of marijuana under a medical authorization.

Individuals with prescriptions for medical marijuana can qualify as disabled under state Human Rights Law (see sidebar). Therefore, school officials should provide reasonable accommodations to faculty and staff for use of medical marijuana to faculty and staff who qualify as disabled.

To date, litigation regarding the obligation to provide reasonable accommodation has involved employees. It is unsettled whether school districts have any obligation to accommodate students who have prescriptions for medical marijuana, and there is a tension between state and federal law on this issue that puts school districts in a legal no-man’s land. (See “Should your district accommodate student use of medical marijuana?” in the April 29, 2019 issue of On Board.) Consult your school attorney should this question arise.

School officials should also be aware that the MRTA prohibits retail stores selling marijuana from locating storefronts within 500 feet of any school grounds. The law also prohibits cannabis advertising that is designed to appeal to persons less than 21 years of age.

The MRTA represents a seismic shift in the rules governing the use and sale of marijuana in New York State, presenting many legal minefields to avoid. Educate your staff and students about the law, as there are bound to be misconceptions or incorrect assumptions. School boards and administrators should review policies, procedures and codes of conduct to confirm consistency with the MRTA and other applicable laws. Consult with your school attorney as needed.

Why your school district should accommodate those with prescriptions for medical marijuana
True or false: Individuals who are certified to use medical marijuana are designated as having a “disability.”

Answer: Under state law, yes. Under federal law, no. This means that school districts and other employers who fail to accommodate an individual’s authorized use of medical marijuana can be vulnerable to legal claims that they violated section 3369[2] of New York’s Human Rights Law, which protects individuals with disabilities.

The obligation was affirmed in 2021 by a state appellate court. In Gordon v. Consolidated Edison Inc., the First Department of the state’s Appellate Division confirmed that the Human Rights Law defines status as a medical marijuana patient as a protected disability.

However, the federal Controlled Substances Act of 1970 does not contain any exception for medical marijuana. Accordingly, federal courts have refused to grant medical marijuana users protection under the Americans with Disabilities Act . [See, for instance, the U.S. Supreme Court’s unanimous ruling in United States v. Oakland Cannabis Buyers' Coop. (2001).]

While there has been no test case, attorneys do not believe that New York's discrimination and accommodation provisions are pre-empted by federal law. In the 2012 case of Noffsinger v. SSC Niantic Operating Co. LLC., a Connecticut federal court stated that the ADA did not preempt a Connecticut law prohibiting employers from discriminating on the basis of medical marijuana use.

In light of these nuanced and sometimes contradictory state and federal rules, school districts should consult with district physician(s), school nurse(s) and legal counsel to evaluate accommodation requests by employees relating to medical marijuana use. 

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Jeff Lewis of Ferrara Fiorenza P.C.

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