Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
As a security officer assigned to a middle school, I was surprised to see a teacher sitting in his car in the school parking lot after school. He was lighting up, and I have seen enough movies to figure that he must be smoking a marijuana cigarette. But I walked over to his car to be sure, knocked on his window, and asked if everything was OK. The teacher smiled sheepishly and rolled down the window. He said that he was “more than fine” as the pungent marijuana smoke hit my nose.
I asked the teacher what on God’s green earth he was doing smoking marijuana on school property. But he just shrugged his shoulders and told me to chill out. He went on to ask me where I have been, because recreational use of marijuana has been legal since 2021. The marijuana notwithstanding, he actually got a little belligerent. He told me to mind my own business, and he drove off in a huff.
I had heard about the legalization of marijuana, but I think that there are still some rules about smoking marijuana, especially on school property. Should I report this teacher to the Administration?
Legal Mailbag hasn’t reviewed your job description, but from here it seems that you, as a security guard, would be expected to report this teacher’s improper and dangerous activity to the Administration. The teacher was wrong in his actions and in his understanding of the law.
Connecticut law prohibits smoking on school property. Conn. Gen. Stat. § 19a-342 provides: “Notwithstanding the provisions of section 31-40q [which permits employers to create smoking rooms], no person shall smoke . . . in any area of a school building or on the grounds of such school,” and the same statute defines “smoke” or “smoking” as “the burning of a lighted cigarette, cigar, pipe or any other similar device, whether containing, wholly or in part, tobacco, cannabis, or hemp.” (Emphasis added). Conn. Gen. Stat. § 19a-342a sets forth a similar prohibition against use of any “electronic nicotine or cannabis delivery system or vapor product” in a school building or on school grounds. In short, this teacher was clearly violating state law by smoking on school property, whether he was smoking a cigarette or a joint.
The teacher’s statements about the legalization of marijuana are irrelevant as to his actions. To be sure, An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis, June Special Session, Public Act No. 21-1, (the “Act”) legalized the recreational use of marijuana for many. However, Legal Mailbag presumes that your district has a policy prohibiting the possession of marijuana on school property, and in legalizing the recreational use of marijuana, the General Assembly left such policies in place. Accordingly, the teacher was almost certainly in violation of your Board policy by possessing marijuana on school grounds.
Legal Mailbag hedged on whether the teacher was in violation of your board of education’s policy by possessing marijuana on school property because there is an exception for employees with a medical marijuana card. That exception, however, relates only as to possession. The Palliative Use of Marijuana Act (PUMA), Conn. Gen. Stat. § 21a-408 et seq., prohibits employers from disciplining employees for possession of marijuana or use of marijuana outside of work as prescribed by their doctor. But the use of medical marijuana on school grounds is not protected under PUMA. Conn. Gen. Stat. § 21a-408a(b)(2)(c). PUMA also permits employers to prohibit marijuana use during work hours and permits an employer to discipline an employee for doing so. Conn. Gen. Stat. § 21a-408p(b)(3). The Act does not change these provisions of PUMA. Accordingly, there is no requirement that employees with a medical marijuana card be permitted to take a “marijuana break” during the workday or otherwise on school grounds, even during a teacher’s preparation period. For a more detailed review of the impact of the Act on school districts, you may be interested in reading Mooney and Sieira Millan, “Harshing Your Mellow? A Look at the Cannabis Law in the School Setting” (CASBO, January 28, 2022).
The open question here is whether your board of education has a policy prohibiting the use of marijuana by employees outside of work hours. Though the Act legalized the recreational use of marijuana in general, it permits employers to adopt a written policy prohibiting employees from off-duty use of marijuana. Moreover, boards of education are “exempted” employers that may enforce such a policy even if it is not in writing. However, in fairness to employees and consistent with the typical board of education policy adoption process, Legal Mailbag would expect that, if it chooses to prohibit off-duty use of marijuana by employees, your board of education will adopt (or has adopted) a policy to that effect.
Now go do your job.