Client Alert: Staying Out of The Weed(s): Legalized Marijuana & Schools | By: Natalie Hoernschemeyer, Grant Wiens & Abbey Widick

On November 8, 2022, Missouri voters approved Constitutional Amendment 3, a ballot measure legalizing recreational marijuana throughout the state, changing the criminal implications of marijuana convictions, and revising certain requirements for medical marijuana. It is important for school administrators to be aware of these changes and how they do (and do not) affect their local school communities.

Q: When does the new state law go into effect?

With a majority of voters approving the ballot measure in the last election, the revisions to Missouri law on the use of medical and recreational marijuana become effective on December 8, 2022.

Q: What is the difference between medical and recreational marijuana?

Medical marijuana has been legal in Missouri since 2018. Patients with a qualified medical condition and a recommendation from a physician (as well as caregivers for the patient) may obtain a medical marijuana card from DHSS to purchase and use marijuana for medical purposes. Minors under the age of 18 may obtain a medical marijuana card through the written consent of their parent.

With the vote in November, recreational marijuana is now also legal in Missouri. Individuals 21-years-old and older can purchase and possess marijuana pursuant to DHSS regulations. It is unlawful for individuals under the age of 21 to recreationally use marijuana, regardless of parental consent.

Both medical and recreational marijuana may only be used in private or in limited, licensed areas. It is unlawful to use any type of marijuana in public generally, while operating a motor vehicle, or while in any form of transportation.

Q: Isn’t marijuana still illegal under federal law?

Yes. Marijuana remains a Schedule 1 drug under the Controlled Substances Act. Pursuant to the Drug-Free Workplace Act, marijuana possession can still lead to criminal and civil liability under federal law. All federal grant recipients must adopt a zero-tolerance policy for employee drug use, possession, and impairment at work.

Q: So, even though marijuana is legal in Missouri, I can prevent district employees from using marijuana while at school?

Yes. Although individuals may no longer face state criminal or civil liability for using marijuana in their free time, school districts can still prevent employees from being under the influence of marijuana while at work.

The discretion to prevent an employee from being under the influence applies to both the use of recreational and medical marijuana at work. Additionally, it applies to all school property before, during, and after the school day.

Q: Can I also discipline an employee for their use of marijuana outside of work?

It depends. Districts cannot discipline an employee solely because they used medical marijuana outside of work hours and off school property. Under the revised state law, a district cannot take adverse employment action against an employee based on their status as a qualifying user or caregiver for medical marijuana, a positive drug test indicating a presence of marijuana, or their use of medical marijuana outside of work.

In other words, district employees are permitted to use medical marijuana when they are away from their job duties.

Depending on the circumstances, however, a district may be able to discipline an employee for off-campus misconduct that may be related to marijuana, particularly if the misconduct affects the safety of others, or their ability to perform their job-related responsibilities or conflicts with a bona fide occupational qualification. Such situations should be reviewed with legal counsel on a case-by-case basis to determine whether there is a nexus to the district and their job duties.

Q: Wait, what about bus drivers?

In addition to state and local laws, school bus drivers are required to follow a number of federal regulations issued by the U.S. Department of Transportation. Because marijuana is still classified as a Schedule 1 controlled substance under federal law, the DOT’s drug and alcohol testing regulations do not authorize the use of any Schedule 1 drugs, including marijuana, for any reason, including medical reasons.

Drivers remain subject to pre-employment, post-accident, reasonable suspicion, and random drug and alcohol screenings. Like all employers, school districts continue to be required to conduct drug testing in accordance with the DOT’s regulations. The testing regulations do not permit “medical marijuana” or “lawful recreational marijuana” as a valid medical/legal excuse for a positive drug test result.

Until and unless the DOT revises its regulations, drivers cannot use medical or recreational marijuana during off-work hours without violating federal law.

Q: Does the new law change how our district hires?

It depends. The new law provides that any conviction for a marijuana-related offense that would not be considered illegal under the new law will be expunged by the State in 2023.

Expungement means that the record of the marijuana conviction is destroyed or sealed and should no longer appear in public records or employee background checks. Once the State completes the expungements by December 2023, school districts should not ask employees or job applicants to disclose an expunged conviction.

If you have a question about a pending job applicant, please consult with legal counsel regarding your hiring options.

Q: What about students? Can they use marijuana while at school?

Most students will not have lawful access to marijuana. Individuals under the age of 21 may not possess or use recreational marijuana. Minors under the age of 18 cannot possess or use medical marijuana without a medical marijuana card and parental consent. For minor students with a medical marijuana card, the marijuana should be in the possession of and then administered as medication by the parent.

Students should not be in personal possession of marijuana at school or during school activities. If a student has a medical marijuana card, the marijuana should remain in the possession of the parent and not used by the student alone at school.

Q: How should a district respond if a parent or student presents a medical marijuana card?

Although a minor student can use medical marijuana if approved by a physician, a district should not allow the student to self-administer at school. Medical marijuana cards are not provided directly to minors but rather are issued to one of the parents or guardians. The parent or guardian serves as the primary caregiver for qualifying minor, allowing them to purchase or possess medical marijuana for the minor and requiring them to supervise the administration of medical marijuana to the minor.

If a parent requests that their student be allowed to access medical marijuana during the school day, we recommend that school districts seek advice from their legal counsel. At a minimum, medical marijuana should not be stored on school property and should not be administered by a school employee or the student. The district may wish to develop an individual plan with the family regarding the parent administering the medical marijuana during the school day.

On November 8, 2022, Missouri voters approved Constitutional Amendment 3, a ballot measure legalizing recreational marijuana throughout the state, changing the criminal implications of marijuana convictions, and revising certain requirements for medical marijuana. It is important for school administrators to be aware of these changes and how they do (and do not) affect their local school communities.

Q: When does the new state law go into effect?

With a majority of voters approving the ballot measure in the last election, the revisions to Missouri law on the use of medical and recreational marijuana become effective on December 8, 2022.

Q: What is the difference between medical and recreational marijuana?

Medical marijuana has been legal in Missouri since 2018. Patients with a qualified medical condition and a recommendation from a physician (as well as caregivers for the patient) may obtain a medical marijuana card from DHSS to purchase and use marijuana for medical purposes. Minors under the age of 18 may obtain a medical marijuana card through the written consent of their parent.

With the vote in November, recreational marijuana is now also legal in Missouri. Individuals 21-years-old and older can purchase and possess marijuana pursuant to DHSS regulations. It is unlawful for individuals under the age of 21 to recreationally use marijuana, regardless of parental consent.

Both medical and recreational marijuana may only be used in private or in limited, licensed areas. It is unlawful to use any type of marijuana in public generally, while operating a motor vehicle, or while in any form of transportation.

Q: Isn’t marijuana still illegal under federal law?

Yes. Marijuana remains a Schedule 1 drug under the Controlled Substances Act. Pursuant to the Drug-Free Workplace Act, marijuana possession can still lead to criminal and civil liability under federal law. All federal grant recipients must adopt a zero-tolerance policy for employee drug use, possession, and impairment at work.

Q: So, even though marijuana is legal in Missouri, I can prevent district employees from using marijuana while at school?

Yes. Although individuals may no longer face state criminal or civil liability for using marijuana in their free time, school districts can still prevent employees from being under the influence of marijuana while at work.

The discretion to prevent an employee from being under the influence applies to both the use of recreational and medical marijuana at work. Additionally, it applies to all school property before, during, and after the school day.

Q: Can I also discipline an employee for their use of marijuana outside of work?

It depends. Districts cannot discipline an employee solely because they used medical marijuana outside of work hours and off school property. Under the revised state law, a district cannot take adverse employment action against an employee based on their status as a qualifying user or caregiver for medical marijuana, a positive drug test indicating a presence of marijuana, or their use of medical marijuana outside of work.

In other words, district employees are permitted to use medical marijuana when they are away from their job duties.

Depending on the circumstances, however, a district may be able to discipline an employee for off-campus misconduct that may be related to marijuana, particularly if the misconduct affects the safety of others, or their ability to perform their job-related responsibilities or conflicts with a bona fide occupational qualification. Such situations should be reviewed with legal counsel on a case-by-case basis to determine whether there is a nexus to the district and their job duties.

Q: Wait, what about bus drivers?

In addition to state and local laws, school bus drivers are required to follow a number of federal regulations issued by the U.S. Department of Transportation. Because marijuana is still classified as a Schedule 1 controlled substance under federal law, the DOT’s drug and alcohol testing regulations do not authorize the use of any Schedule 1 drugs, including marijuana, for any reason, including medical reasons.

Drivers remain subject to pre-employment, post-accident, reasonable suspicion, and random drug and alcohol screenings. Like all employers, school districts continue to be required to conduct drug testing in accordance with the DOT’s regulations. The testing regulations do not permit “medical marijuana” or “lawful recreational marijuana” as a valid medical/legal excuse for a positive drug test result.

Until and unless the DOT revises its regulations, drivers cannot use medical or recreational marijuana during off-work hours without violating federal law.

Q: Does the new law change how our district hires?

It depends. The new law provides that any conviction for a marijuana-related offense that would not be considered illegal under the new law will be expunged by the State in 2023.

Expungement means that the record of the marijuana conviction is destroyed or sealed and should no longer appear in public records or employee background checks. Once the State completes the expungements by December 2023, school districts should not ask employees or job applicants to disclose an expunged conviction.

If you have a question about a pending job applicant, please consult with legal counsel regarding your hiring options.

Q: What about students? Can they use marijuana while at school?

Most students will not have lawful access to marijuana. Individuals under the age of 21 may not possess or use recreational marijuana. Minors under the age of 18 cannot possess or use medical marijuana without a medical marijuana card and parental consent. For minor students with a medical marijuana card, the marijuana should be in the possession of and then administered as medication by the parent.

Students should not be in personal possession of marijuana at school or during school activities. If a student has a medical marijuana card, the marijuana should remain in the possession of the parent and not used by the student alone at school.

Q: How should a district respond if a parent or student presents a medical marijuana card?

Although a minor student can use medical marijuana if approved by a physician, a district should not allow the student to self-administer at school. Medical marijuana cards are not provided directly to minors but rather are issued to one of the parents or guardians. The parent or guardian serves as the primary caregiver for qualifying minor, allowing them to purchase or possess medical marijuana for the minor and requiring them to supervise the administration of medical marijuana to the minor.

If a parent requests that their student be allowed to access medical marijuana during the school day, we recommend that school districts seek advice from their legal counsel. At a minimum, medical marijuana should not be stored on school property and should not be administered by a school employee or the student. The district may wish to develop an individual plan with the family regarding the parent administering the medical marijuana during the school day.

Q: Can a district discipline a student for using marijuana away from school?

As mentioned above, most students will not have lawful access to marijuana since recreational marijuana is not legal for individuals under 21 years old and medical marijuana for minors should only be administered by a parent or guardian. Therefore, student use of  self-administered medical marijuana or recreational marijuana off campus will be illegal activity.

Whether a district disciplines a student for illegal activity that occurs off campus is a case-by-case analysis, depending on the nature of the conduct and whether there is a nexus between the off campus actions and the school environment. A call to legal counsel is recommended.

Q: Should our district drug test students as part of participating in sports or extracurricular activities?

Drug testing programs for public school students may be reviewed by the Courts to determine if the policy is “reasonable.” Courts will balance the students’ privacy interests, the invasive nature of the testing, the nature and immediacy of the school’s needs and interests, and how efficiently the policy actually meets the school’s needs.

Of course, the availability of medical marijuana complicates test results for minors, since the presence of marijuana can remain in the system for weeks after use. If your district is interested in maintaining or starting a drug testing program, please contact legal counsel to review the liability risks.

Q: What should we do if we believe a student is under the influence of marijuana at school?

Multiple staff members should document the student’s behavior and reasons for the report (e.g., smell, gait, glassy eyes, focus issues, change in personality). Additionally, the district should document any disruption to the educational environment (e.g., distraction of other students, effect on classroom instruction). The district’s SRO or school nurse should be contacted, particularly if there is a safety risk to self or others. Interviews may be useful in determining if there is any marijuana on campus and in the student’s possession.

Discipline may be imposed under district policy, depending on the circumstances including misconduct/disruption at school and whether the district can rule out presence of medical marijuana. We recommend a call to legal counsel to ensure all proper steps are taken prior to the imposition of discipline.

We will continue to monitor the employment and educational implications of Amendment 3 as the law inevitably finds its way to court for judicial review. For more information on the legalization of medical and recreational marijuana, please contact us.

Natalie Hoernschemeyer  |  Grant Wiens  |  Abbey Widick

Our team of professionals welcomes the opportunity to serve your needs.

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