4/2/2018 Legal or Illegal: Sorting Out the Marijuana Law In Schools Marijuana, Edibles & Vapors The Middlesex Partnerships for Youth, Inc. APRIL 5, 2018 MICHAEL J. JOYCE, ESQ. NUTTALL, MACAVOY & JOYCE, P.C. WWW.NMJEDLAW.COM Three sets of laws • Federal laws • Still in effect despite Massachusetts’ changing laws. • Supersede state law. • Massachusetts Medical Use of Marijuana Program (Chapter 369 of the Acts of 2012). • Massachusetts Recreational Marijuana (M.G.L. c. 94G) • Went into effect through referendum on December 15, 2016. • An Act to Ensure Safe Access to Marijuana, 2017 • Established procedures for towns and cities to exercise control over development of marijuana establishments. Federal Laws 1
4/2/2018 Controlled Substances Act (CSA) 21 U.S.C. § 801 et seq. • Marijuana is a Schedule 1 controlled substance under the CSA. • Schedule 1 substances “have no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse .” • Criminalizes possession, use, and growth of marijuana. • Federal agencies may prosecute possession, use, growth, and sales of marijuana. Drug Free Schools and Communities Act of 1986 • Requires local educational agencies to have drug and alcohol abuse prevention program(s) in place to prevent: the unlawful possession, use, or distribution of illicit drugs and alcohol by all students and employees on school premises or as part of any of its activities. • 34 C.F.R. § 86 et seq. • Drug and alcohol abuse prevention programs are necessary for both local educational agencies and institutions of higher education to receive federal funding. The Drug Free Workplace Act of 1988 • Institutions receiving any federal grant must establish a policy prohibiting the manufacture, use, and distribution of controlled substances in the workplace. 41 U.S.C. § 8103. • Institutions must publish a statement to employees notifying them of the drug-free workplace policy and specifying actions that will be taken against employee for violations of the prohibition. • Must create a drug-free awareness program directed at employees. • An institution’s failure to demonstrate its ongoing good -faith efforts to maintain a drug-free workplace can disqualify that institution from obtaining future government funding. 2
4/2/2018 U.S. Attorney General Current Federal Position ▪ January 4, 2018, Attorney General Jefferson B. Sessions, III issues Memorandum for all United States Attorneys ▪ Reiterated the criminal nature of the cultivation, distribution and possession of marijuana under federal law. ▪ “[M] arijuana is a dangerous drgu and that marijuana activity is a serious crime.” ▪ Rescinded prior marijuana enforcement guidance that had arguably paved the way for legalized marijuana to expand in states across the country. ▪ Left prosecution of marijuana-related crimes up to the individual U.S. Attorneys. Massachusetts laws Massachusetts Controlled Substances Act (M.G.L. c. 94C) • Marijuana is a Class D substance under the Massachusetts Controlled Substances Act. • Manufacturing, distributing, dispensing, cultivating, or possessing with intent to manufacture, distribute, dispense or cultivate marijuana is a misdemeanor. • Up to 2 years imprisonment and/or up to $5,000 fine. • M.G.L. c. 94C § 32C • Trafficking in marijuana (possessing or bringing into Massachusetts >50 pounds of marijuana) carries a minimum 1 year imprisonment. M.G.L. c. 94C §32E. • >100 pounds is a felony, carrying a punishment of 2-15 years imprisonment in the state house of corrections . 3
4/2/2018 Medical Marijuana in Massachusetts Massachusetts Medical Marijuana Law • Under State law, medical marijuana has been legal since 2012. • An Act for the Humanitarian Medical Use of Marijuana , Chapter 369 of the Acts of 2012. • DPH regulations implementing the Act: 105 CMR 725.000. • Final regulations enacted on December 1, 2017. Must School Districts Allow Student Use of Medical Marijuana at School? No. • “Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment, school bus or on school grounds …” Also at 105 CMR 725.650. • Some state statutes specifically require schools to accommodate student use of medical marijuana on school grounds (Maine, Colorado, Delaware, NJ). • The Americans with Disabilities Act and Section 504 of the Rehabilitation Act (federal laws) do not require accommodation for use of medical marijuana because under the federal law, marijuana is illegal. 4
4/2/2018 Must School Districts Allow Employee Use of Medical Marijuana at School? No. • “Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment, school bus or on school grounds…” • What about outside of school hours? • Barbuto case • Involved Pre-employment drug testing Recent SJC Decision, Barbuto • Employment discrimination case. • Employee denied job after testing positive in pre-employment drug test, although she had previously informed employer that she was a medical marijuana user. • SJC determined that employer failed to engage in interactive dialogue about reasonable accommodations to its drug-free work policy. • Case shows that medical marijuana user can bring a cognizable claim for disability discrimination under state anti-discrimination law. • Court also noted that employer could raise a cognizable undue hardship defense by demonstrating that a contractual obligation or federal statute prohibited drug use (Drug Free Workplace Act). Barbuto v. Advantage Sales and Marketing, LLC, et al., No. 15-02677 (Mass. Sup. Ct. May 31, 2016). Massachusetts Recreational Marijuana Law • MGL c. 94G -- The Regulation and Taxation of Marijuana Act • Persons ages 21+ cannot be arrested or prosecuted under STATE law for possessing, using, purchasing, processing, or manufacturing less than 1 ounce of marijuana. • Up to 10 ounces allowed in a primary residence; can cultivate up to 6 plants. • Transfer of marijuana products to a person under the age of 21 is illegal. 5
4/2/2018 Massachusetts Recreational Marijuana Law • The law does not authorize possession or consumption of marijuana or marijuana accessories on public or private school grounds. • Smoking marijuana in a public place, including anywhere tobacco use is not allowed, is illegal. • Operating under the influence of marijuana is illegal. M.G.L. c.71, § 37H • A Principal has authority to permanently suspend or expel a student for the following conduct: • Possession of a dangerous weapon • Principal’s determination • Possession of a controlled substance (as defined in c.94C) • Marijuana = controlled substance • Alcohol ≠ controlled substance • Assault on Staff • Principal must conduct formal hearing at which: • student has right to counsel (at private expense); • to examine the evidence against the student; • and to present evidence in own defense. • Student may appeal decision in writing to Superintendent or designee within 10 calendar days. What if a student comes to school high? • If student has a valid medical marijuana card: • Treat it like any other prescription medication. • Drug Free Schools Act refers to use, possession, or distribution on school grounds or as part of any school activity , not use prior to entering school property. • If student does NOT have a valid medical marijuana card, treat it as you would any other illegal substance and/or school rule violation. • Recreational use law only applies to those 21+. 6
4/2/2018 What about employee recreational use? • MGL c. 94G “ shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees .” • No reasonable accommodation required under ADA or Section 504 (not medical issue). • Must comply with Drug Free Workplace Act and Drug Free Schools Act. • Must notify employees about access to employee assistance programs. Massachusetts Drug Screening Law M.G.L. c. 71, § 97 ▪ Annual basis; subject to appropriation. ▪ 2 different grade levels (e.g., 7 th and (9 th ) ▪ Verbal screening tools shall be approved by DESE. ▪ De-identified screening results to be reported to DPH. ▪ Opt-out ▪ Student or student’s parent may opt out of the screening by written notification at any time prior to or during the screening. ▪ Notice to be provided prior to the start of the school year. Massachusetts Drug Screening Law M.G.L. c. 71, § 97 ▪ Disclosure - “Any statement, response or disclosure made by a pupil during a … screening shall be considered confidential information and shall not be disclosed… to any other person without the prior written consent of the pupil, parent, or guardian, except in cases of immediate emergency or a disclosure is otherwise required by state law." ▪ This consent must be documented on a form approved by DPH ▪ The consent is not subject to criminal or civil subpoena. ▪ “No record of any statement, response or disclosure shall be made in any form, written, electronic or otherwise, that includes information identifying the pupil.” 7
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