Who can forget the year 2020? We had the COVID-19 pandemic, the Harvey Weinstein verdict, the death of NBA star Kobe Bryant, and oh yea - in South Dakota, we had Initiated Measure 26 pass which legalized medical cannabis. (Talk about a lot of big things happening!) Initiated Measure 26 became codified in state law at SDCL 35-20G. This new law impacted school districts in the state as districts passed policies addressing the use of medical marijuana, both for students and staff. One concern we regularly hear in our office relates to the use of medical marijuana by staff. Legally, what, if anything, can the school district regulate? Here are the top questions we receive.
Does a staff member have to disclose to administration if the staff member has a medical marijuana card?
A school may ask on an employment application if the staff member has a medical marijuana card. If the employee does not answer truthfully, that can be grounds for termination. However, South Dakota law states: “A cardholder may not be refused enrollment by a school or a lease by a landlord, or otherwise be penalized by a school or landlord solely for the person's status as a cardholder, unless failing to do so would violate federal law or regulations or cause the school or landlord to lose a monetary or licensing-related benefit under federal law or regulation.” (emphasis added).
What can an administrator do if the administrator suspects a school employee is high or impaired at school?
If an administrator has reason to suspect a staff member is high or intoxicated, the administrator can request the staff member report to a clinic or hospital to receive a drug test. If the staff member refuses such a request, the administrator can discipline the staff member for insubordination.
Should the district have a provision in the staff handbook regarding medical marijuana?
Yes, districts should review their staff handbooks and consider including a provision regarding medical marijuana.
Is medical marijuana a reasonable accommodation under the ADAAA?
Because medical marijuana is an illegal drug under federal law, there is no duty to provide an accommodation as the ADAAA does not apply.
What about safety sensitive positions? (Such as those driving students, bus drivers, etc.)
For those individuals such as bus drivers, the U.S. Department of Transportation's rules apply regarding drug testing. Those individuals must pass drug tests regardless of the South Dakota law allowing medical marijuana.
If you have questions about employment law, please contact us at (402) 804-8000 or send everyone an email at ksb@ksbschoollaw.com.