The U.S. Department of Education (ED) announced its plan to review a University’s alcohol and other drug (AOD) policies and procedures as part of an ongoing investigation related to Title IX. With students and employees the subject of Title IX investigations and subject to AOD policies, as well as emerging trends related to medical and recreational marijuana, now is the time to reevaluate your school’s AOD policies, procedures, and practices as it relates to students and employees.

Student Issues with Drugs and Alcohol

Universities and colleges participating in Title IV Federal Student Aid programs must implement programs designed to prevent drug and alcohol abuse on campus and at institutional activities and events. The Drug-Free Schools and Communities Act (DFSCA) has several requirements including an annual notice and biennial review.

Some things to keep in mind regarding drugs, alcohol and students include the following:

  • ED has not developed an official policy on allowing electronic dissemination for fulfillment of the requirement that institutions distribute their AOD annual notification in writing. Therefore, if you choose to do so, ensure you can provide reasonable assurance to ED that the method used guarantees distribution to all students and employees if subject to an audit or program review.
  • According to ED, model biennial review reports include:
    1. Materials that complement and support the biennial report;
    2. Information on evaluation of your school’s program effectiveness;
    3. Detailed information regarding goals and accomplishments of such goals;
    4. Recommendations for revising alcohol and other drug programs and policies; and
    5. Demonstration that the school used a task force to complete the biennial review.
  • Recent judicial rulings in negligence suits against colleges and universities make clear that even though they cannot be expected to control student conduct, schools must ensure that their activities, offerings, and programs meet minimum standards of care and have a standard of firm and consistent enforcement.

Employee Use of Marijuana

As a growing number of states legalize some form of marijuana, the question often arises as to whether employers can continue to implement drug-free workplace policies. The answer for employers in most states is yes. Marijuana is still a Schedule I controlled substance and therefore illegal under federal law. This means that in all but one of the 29 states with laws permitting medical marijuana, and the eight states with laws legalizing recreational marijuana, employers may generally still enforce drug-free workplace policies.

In one very recent Massachusetts state case (July 17, 2017), the state’s high court threw a wrench in this otherwise established answer. The court ruled that a Massachusetts employer must consider whether it would be a reasonable accommodation to waive its drug-free workplace policy under the state’s anti-discrimination statute. This case is directly contrary to the established view among state courts that have considered the issue, which have consistently held that state marijuana laws do not obligate employers to accommodate marijuana use. Despite varied language within each of the states’ marijuana statutes, courts have generally come to this conclusion based on the supremacy clause—i.e., when a conflict exists, federal law trumps state law, and marijuana remains illegal under federal law.

In California, Oregon, and Washington, for example, courts have all specifically ruled that employers have no duty to accommodate medical marijuana use under state disability laws. In the seminal Colorado case, the issue was not whether the employer had a duty to accommodate marijuana use for a disability, but instead whether the state’s “Lawful Off-Duty Activity Statute” prohibited the employer from firing an employee for “lawful” marijuana use outside of work. The Colorado Supreme Court found that it did not, reasoning that state marijuana laws do not make marijuana “lawful” because it is still illegal under federal law.

In the Massachusetts case, a new employee was required, per the company’s policy, to take a drug test. Barbuto v. Advantage Sales & Marketing, LLC, SJC-12226. The employee notified her manager that she would test positive for marijuana because she used the drug, pursuant to the state’s Medical Marijuana Act, to treat symptoms of Crohn’s disease. When she tested positive, though, her employer discharged her pursuant to its policy of not hiring applicants who test positive for, among other drugs, marijuana. Ms. Barbuto filed a claim of disability discrimination under Massachusetts’ state anti-discrimination law, and the lower court dismissed her claim, agreeing with most state courts that the employer was not obligated to accommodate her use of marijuana—a federally-prohibited drug. However, the Massachusetts Supreme Judicial Court reversed, finding that the employer had to consider whether Ms. Barbuto’s accommodation request—i.e., waiver of the company’s drug-free workplace policy—was reasonable under the state anti-discrimination statute. While the court did not conclude that it was necessarily reasonable, it explained that the employer must at least engage in the interactive process to determine if it would be reasonable.

What This Means To You

For college and university employers in Massachusetts, this is a significant change. Now, Massachusetts employers cannot automatically enforce a drug-free workplace policy based on a positive test for marijuana, when the marijuana use relates to a disability. Instead, employers must engage in the interactive process and make a determination as to whether it would be an undue burden to waive a drug policy as it relates to that employee. Employers do not have to allow employees to use marijuana in the workplace or to be impaired at work.

For employers in any other states, the prevailing view remains that employers have no duty to accommodate an employee’s marijuana use, even when the use is off-site and pursuant to state marijuana laws. While employers in any state other than Massachusetts may continue enforcing drug-free workplace policies, this Massachusetts case may be the beginning of a new trend for state courts. The court reasoned that circumstances have changed since 1970, when marijuana was declared a Schedule I controlled substance under federal law because it had “no currently accepted medical use in treatment in the United States.” As the court pointed out, this statement is inconsistent with the fact the majority of states have now enacted laws permitting the use of marijuana specifically for the purpose of medical treatment. The court’s reasoning in its decision may soon gain traction in other states as well.

For an additional checklist of things to keep in mind regarding your school’s drug and alcohol policies, procedures, and practices, please see our blog post regarding failure to comply with drug and alcohol abuse education and program requirements making ED’s list of top 10 program review findings.