Cannabis and new Illinois law: Assessing impacts to school districtsBy Tony Sanders
On January 1, 2020, Illinois will join 10 other states and Washington, D.C. in allowing recreational use of marijuana now that Governor J.B. Pritzker signed P.A. 101-27, the Cannabis Regulation and Tax Act (CRTA). Some of the significant provisions of the law include:
- Allows individuals 21 years of age or older the ability to possess, use, and purchase cannabis for recreational use;
- Authorizes qualifying individuals the ability to grow cannabis for personal use;
- Provides for the regulation and licensing of several sectors of the cannabis industry, including dispensaries, packaging, and retailing;
- Provides for expungement of minor cannabis violations;
- Creates a Restore, Reinvest, and Renew Program to provide low-interest loans to social equity applicants, as well as investment in communities that have suffered as a result of drug policies;
- Creates the Community College Vocational Training Pilot Program for up to eight programs by September 1, 2020, with students in the program required to be 18 years of age or older; and
- Provides for taxation for the sale of cannabis.
This soon-to-be law has multiple legal and policy implications for Illinois school districts. Here, we explore some of the implications as well as suggest policy changes for school boards and school officials to contemplate in the areas of student discipline, employment policies and handbooks, public access to school facilities, and dual-credit programs.
From the outset, I need to be clear in stating that boards of education and school districts should consult their attorneys before amending existing or implementing any new policies. Further, districts need to recognize that while Illinois law permits the recreational and medical use of cannabis, federal law prohibits it. School districts risk the loss of federal funding through the federal Drug-Free Workplace Act for any violation of the federal Safe and Drug-Free Schools and Communities Act. Note, however, that the U.S. House of Representatives has voted in favor of prohibiting the U.S. Department of Justice from interfering with a state’s decision to implement laws governing the legalization of cannabis (recreational and medicinal).
Most school district policies will prohibit students from using, possessing, or distributing any illegal drug or controlled substance (for school boards that subscribe to IASB’s Policy Reference Education Subscription Service (PRESS) or PRESS Plus, this is usually found in a Section 7 sample policy). Many policies also prohibit the possession, distribution, or use of any inhalant that would cause the user to become intoxicated or that causes a dulling of the nervous system.
Policies addressing student discipline need to be reviewed and updated in response to the Illinois CRTA as follows:
Ensure language regarding the use of illegal drugs is updated to reflect that state law no longer considers cannabis to be illegal. Policy should clearly state the use, possession, or distribution of cannabis by a student is grounds for disciplinary action (unless it is a medicinal use authorized by Ashley’s Law), similar to most existing policies regarding alcohol;
The conduct cited for using, possessing, or distributing inhalants that could cause intoxication should be updated to reflect that not all cannabis products are inhalants. As such, the policy should be reviewed and updated to include any form of cannabis, including edible or topical creams.
Employment Policies and Handbooks
All employers, including school districts, should consider the new legal and policy issues. School officials should review their policies and employment handbooks to address several areas, including the Americans with Disabilities Act, the Illinois Right to Privacy in the Workplace Act, and Ashley’s Law relative to the dispensing of cannabis to students.
Americans with Disabilities Act
Because federal law bans cannabis, individual states are left to determine how to handle the use of medical marijuana by workers. In a 2018 article, “Do Disability Laws Cover Medical Marijuana Use?” in Senior Human Resource Manager magazine, author Yvette Farnsworth Baker notes that while the ADA requires employers to make reasonable accommodations for employees with disabilities, “the act does not protect illegal drug use.”
According to a brief published by the law firm Holland and Knight, the Illinois Medical Cannabis Pilot Program of 2013, which was the precursor for the latest cannabis law, allowed “employers to adopt and enforce reasonable workplace policies such as ‘drug free’ or ‘zero tolerance’ policies and to impose discipline up to, and including, termination if an employee is impaired or under the influence of cannabis while in the workplace.” These provisions remained intact with the CRTA.
Thus, under the new Cannabis Regulation and Tax Act law, school districts do not have to accommodate the usage of medical cannabis by an employee while the employee is at work.
General Employment and Employee Drug Testing
Many attorneys agree that the challenge for employers to consider is how to prove if an employee has worked while under the influence.
Many firms recommend that the best way to prove being under the influence or working impaired is for employers to have some system of intermittent drug testing. However, the ability to take action against an employee would require a better system of testing to determine if an individual had utilized cannabis within the past 24 hours.
Employees holding Commercial Drivers Licenses (CDLs) in transportation must abide by federal laws that prohibit the usage of cannabis. As such, a positive drug test for an employee who drives a school bus would be grounds for action against the employee.
On June 20, 2019, the National Law Review noted how the CRTA will change the landscape regarding Illinois employment laws. They say (note common use of “cannabis” and “marijuana” interchangeably),
“Further, and notably, the CRTA also amended the Illinois Right to Privacy in the Workplace Act (the ‘Privacy Act). [As] the CRTA becomes law, the Privacy Act will provide that except as otherwise provided by law – including the provisions of the CRTA … regarding employer policies, permissible prohibitions and employer liability – an employer cannot take adverse action against an employee or applicant based only on his or her use of products outside of work that are lawful under state law, which will include marijuana [i.e., lawful products]. … employers who currently engage in pre-employment testing for marijuana [use likely must] reevaluate whether they wish to continue that practice, given that a positive drug test may only indicate the use of marijuana outside of work (in a manner consistent with state law). In addition, employers should reconsider their practices which may call for or allow testing for marijuana even in the absence of evidence that the employee is impaired.”
Medical Administration of Cannabis to Students
Effective August 1, 2018, Illinois students who are registered qualifying patients with designated caregivers may access cannabis products at school under P.S. 100-0660, known as Ashley’s Law, and the 2019 expansion of it in P.A. 101-0370. The law states that no school employee can be required to administer the medical cannabis product, and a school does not have to allow use of these products at school if it would disrupt the school’s educational environment, expose other students to the product, or if the district would lose federal funding as a result of doing so. The law does not allow students to smoke cannabis at school.
School district leaders should review policies to ensure they are clear that only designated caregivers, school nurses, and/or administrators shall administer cannabis to any student if it is determined that administration would not disrupt the educational environment. Further, they should develop a procedure for school administrators and nurses to follow when a student presents as a registered qualifying patient, e.g., with a “medical marijuana card.”
Public Access to School Facilities
While smoking, or drug use, is not permitted on school grounds, school boards and administrators should review their policies relative to public access to school facilities. Our doors open daily for concerts, sporting events, and activities. Schools are the centers of our communities, and when our doors open, we know that the behaviors that some are accustomed to outside of school will be brought into our schools.
Beyond a policy review, district leaders may want to consider conversations with local law enforcement regarding their needs to enforce the law. For example, like the posting of signs barring patrons from bringing in weapons, local law enforcement may find it easier to enforce laws concerning cannabis if there is signage reminding visitors of the policy.
The Illinois CRTA allows for a pilot program coordinated by the Illinois Community College Board to issue up to eight program licenses for vocational training leading to a “Career in Cannabis Certificate.” Students over the age of 18 qualify to participate in any approved program that will “prepare students for a career in the cannabis industry” with courses that “allow participating students to work with, study, and grow live cannabis plants.”
An interesting question is whether community colleges would risk losing federal grants, should the federal government choose to enforce the Drug-Free Schools and Communities Act. While I have that concern, it seems community colleges will see this as a way to attract students to a new program of study. Oakton Community College in Des Plaines, announced last March that it will “Blaze Trail in Community College Health Care Curriculum with Medical Cannabis Program.” An April 11, 2019, Chicago Tribune article also noted the increase in the number of community colleges considering cannabis-oriented programs.
This is germane to K-12 because it raises the future concern of high school students participating in dual-credit courses at a community college where courses leading to a Career in Cannabis Certificate are taught. A question for school boards and superintendents to consider as cannabis legalization moves forward is whether their high school students who are above the age of 18 would be allowed to attend vocational programming where cannabis is grown and studied which, on its face, likely violates the Drug-Free Schools and Communities Act.
While not a legal issue, school districts need to review their existing health curriculum at all grade levels as it relates to the use of cannabis. In reviewing materials available in states where the recreational use of cannabis has been in place for a period of time, I found some good resources for health curriculum available through the State of Colorado’s Department of Health and Environment (see link to resources, below).
State law (105 ILCS 5/27-13.2 and 23.4) requires boards to age-appropriately educate students about drug and substance abuse prevention and relationships between drugs, alcohol, and violence.
Sale of Cannabis or Advertising of Cannabis near Schools
Cannabis cannot be advertised within 1,000 feet of the perimeter of any school grounds or a playground. There are no restrictions in the CRTA, as written, concerning the sale of cannabis near schools. The only circumstance where cannabis can be brought onto school property is for a “qualifying patient or caregiver pursuant to the Compassionate Use of Medical Cannabis Program Act.”
State-Level or Statewide Policy Considerations
Schools already struggle with the prolific use of vaping, drugs, and alcohol among youth. The legalization of cannabis opens the doors even further to access to the drug by students, and schools need to be prepared.
The law legalizing cannabis in Illinois does provide for 25% of revenues to be deposited into the Common School Fund; however, it does not require the maintenance of effort on the part of General Revenue Funds. We have seen this occur before when the lottery was created. While the revenue was aimed at the Common School Fund, it simply resulted in a decrease in school funding from the General Revenue Fund.
School boards and superintendents need to take an active stance to advocate for funding to support drug prevention and intervention strategies, and for the support of a health curriculum focused on prevention. We know schools will be on the front line of this issue, and funding should be in place from the outset to help address the needs of schools relative to drug prevention.
Tony Sanders is Chief Executive Officer of Elgin-based School District U-46, the state’s second-largest school district. Resources for this article, including sources, links to state recreational marijuana laws, and additional readings are available at http://bit.ly/ND19Jres.