Marijuana and CBD considerations for school districts

DISCLAIMER: The information provided in this resource, which was last updated on December 6, 2019, is subject to quickly evolving change and interpretation and does not constitute legal advice. You should consult board counsel if you encounter an issue related to medical marijuana or CBD products so the most current information and specific facts can be considered. 

Student issues for Ohio public schools

Can a student with a medical marijuana registration bring medical marijuana to school?

• Not legally. School districts usually have policies related to prescription and over-the-counter medications. Currently, medical marijuana remains a prohibited Schedule I drug under federal law. Allowing Schedule I drugs on school property violates the Drug-Free Workplace Act and could potentially put federal funds at risk.

Can a student bring CBD products to school?

• Not currently. Neither the FDA nor the Ohio Department of Agriculture currently has regulations in place to process, label, test or sell CBD products. Therefore, any CBD products that a student may possess are not authorized by the FDA or ODA, and most importantly, without regulation, consumers do not know the exact content with any degree of confidence. Properly manufactured and labeled CBD products may become legal at some time in the future.

Should a staff member store or administer medical marijuana or CBD products to a student?

• Not medical marijuana. Currently, medical marijuana remains a prohibited Schedule I drug under federal law. Allowing Schedule I drugs on school property violates the Drug-Free Workplace Act and could potentially put federal funds at risk. In addition, medical marijuana requires a registration (not a prescription) that staff members are not able to verify.
• Currently, not CBD products. The FDA currently has no regulations in place to process, label or sell CBD products. Given this, the FDA maintains that CBD products cannot be sold in interstate commerce. In Ohio, the Ohio Department of Agriculture regulates CBD products. Again, no regulations currently exist for the processing, testing, labeling or sale of CBD products. Therefore, any CBD products that a student may possess are not authorized by the FDA or ODA, and there is no way to verify or test the products to determine THC or other content.

Should a school allow a parent to bring medical marijuana to the school to administer it to their child?

• It is not advisable. Currently, medical marijuana remains a prohibited Schedule I drug under federal law. Allowing Schedule I drugs on school property violates the Drug-Free Workplace Act and potentially puts federal funds at risk.
• According to federal law, schools are required to provide an educational environment that is free from controlled substances as a condition of receiving federal funds.

What happens if a student-athlete tests positive for THC?

• Participation in athletics is a privilege, not a right. A school district may establish reasonable rules and regulations related to participation. A positive test for THC, due to the use of medical marijuana or the accumulation of THC in the body due to prolonged use of CBD products, should be considered and treated as a positive test for THC under the district’s rules and regulations.
• Before testing, as testing protocol, a school may want to ask students to provide any relevant information that may result in a positive test.
• Requests for accommodation of a disability should be considered carefully in consultation with legal counsel.

What if a student appears impaired?

• The use of medical marijuana can have intoxicating effects. The use of CBD products that contain less than 0.3% THC (by dry weight), should not result in any impairments. However, studies suggest it is possible for THC to accumulate in the body due to prolonged use. As discussed herein, CBD products lack any reliable regulating, testing or labeling at the current time.
• If a student claims that he or she smoked marijuana or hemp (with a 0.3% THC concentration or lower) rather than marijuana, their conduct is illegal. Remember that there is currently no legal authorization to smoke either medical marijuana or hemp.
• As in every case, information that a student provides during any due process hearing should be considered before disciplinary action is taken.

What if a parent requests that the use/administration of medical marijuana or CBD products be included in the student’s IEP, 504 or health plan?

• Medical marijuana is not “legal” under federal law. At this time, there is no legal obligation under Ohio law to accommodate students regarding their use of medical marijuana. Further, an individual can register for medical marijuana only if the individual suffers from one of the qualifying medical conditions recognized under Ohio law.
• Regulations are not yet in place regarding cultivation, labeling, testing or sale of CBD products under federal or state law.
• This is a quickly evolving area and any requests for accommodations, including adding use or administration of medical marijuana or CBD products to an IEP, 504 or health plan should be carefully considered in consultation with legal counsel.

Employment issues for Ohio public schools

Should a staff member with a medical marijuana registration be permitted to bring medical marijuana to work for personal use?

• No. Ohio law does not require an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana. Further, Ohio law does not prohibit an employer for taking adverse action against a person regarding their employment for use, possession or distribution of medical marijuana.
• School districts usually have policies related to prescription and over-the-counter medications. Currently, medical marijuana remains a Schedule I controlled substance under federal law and is not considered a “prescription” or “over the counter” medication. Allowing Schedule I drugs on school property violates the Drug-Free Workplace Act and potentially puts federal funds at risk.

Should a staff member be permitted to bring CBD products to work for personal use?

• Not currently. The FDA currently has no regulations in place to process, label or sell CBD products. Given this, the FDA maintains that CBD products cannot be sold in interstate commerce. In Ohio, the Ohio Department of Agriculture regulates CBD products. Again, no regulations currently exist for the processing, testing, labeling or sale of CBD products. Therefore, any CBD products that an employee may possess for therapeutic use are not authorized by the FDA or ODA.

What happens if a staff member tests positive for THC, due either to medical marijuana use or due to accumulation of THC in their body due to prolonged “legal” CBD use?

• A high enough quantity of CBD products consumed through edibles, vaping or other means could result in a positive drug test.
• The legalization of medical marijuana and CBD products does not change an employer’s obligations to drug-test certain employees (for example, school bus drivers and other CDL holders) under federal law.
• Ohio law does not prohibit an employer from establishing or enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.
• No cause of action is created against an employer for taking adverse employment action against a person who tests positive on a drug test administered under the employer’s drug testing policies, even if the employee claims that the positive test is related to medical marijuana.
• Under Ohio law, a person who is discharged from employment because of the person’s use of medical marijuana shall be considered to have been discharged for just cause for purposes of unemployment, if the person’s use of medical marijuana was in violation of an employer’s policy.

What if an employee appears impaired?

• Ohio law prohibits registered patients from driving a vehicle under the influence of medical marijuana.
• While the use of CBD products is not expected to result in impairment due to its low THC content, currently, there is no approved testing or required labeling of CBD products.
• An employer may require an employee to submit to a drug or alcohol test if it reasonably suspects that employee of reporting to work in an impaired state.

What if the employee requests an “accommodation” for use of medical marijuana or a CBD product?

• Medical marijuana is not “legal” under federal law. At this time, there is no legal obligation under Ohio law to accommodate employees regarding their use of medical marijuana. An individual can register for medical marijuana only if the individual suffers from one of the qualifying medical conditions recognized under Ohio law. Still, an employer has no obligation to allow an employee to use medical marijuana for therapeutic purposes.
• Regulations are not yet in place regarding cultivation, labeling, testing or sale of CBD products under federal or state law. Currently, it is questionable whether an employer must “accommodate” an employee’s use of CBD products.
• This is a quickly evolving area and any requests for accommodations should be carefully considered in consultation with legal counsel.