CAS Legal Mailbag ' 2/9/23

• Jurisdiction: Connecticut,United States,Federal
• Law Firm: Shipman & Goodwin LLP
• Subject Matter: Consumer Protection, Food, Drugs, Healthcare, Life Sciences, Cannabis & Hemp, Education, Food and Drugs Law
• Author: Mr Thomas B. Mooney
• Published date: 15 February 2023

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Originally appeared in the CAS Weekly Newsletter

Dear Legal Mailbag:

As an HR director for a Connecticut school district, I read with interest your response last week to the security guard who caught a teacher lighting up a marijuana cigarette in the school parking lot.

Given what I learned last week, I will be proposing to the Superintendent that she recommend that the Board of Education adopt a policy prohibiting employees from using marijuana on or off the job. We want our employees to be sharp and straight-edge so that they can focus appropriately on work without being hungover or fuzzy in their thinking.

Such a prohibition, however, carries its own complication - how on earth would we enforce the prohibition? Accordingly, I have a follow-up question. If the Board adopts a policy prohibiting marijuana use on or off campus, can we go ahead and require that employees submit to random drug testing?

If the Board adopts this prohibition against marijuana use, we should enforce it, and I can't think of a better way than drug testing. I just want to make sure that I am on solid ground if I take this next step and initiate random testing for marijuana.

Signed,

Eager to Test

Dear Eager:

Looking only at "An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis," June Special Session, Public Act No. 21-1, it would appear that school districts can simply test for marijuana use. Conn. Gen. Stat. '21a-422p(d)(2) of the Act provides:

(2) Nothing in sections 21a-422o to 21a-422s, inclusive, shall limit or prevent an employer from subjecting an employee or applicant to drug testing or a fitness for duty evaluation, or from taking adverse action, including, but not limited to, disciplining an employee, terminating the employment of an employee or rescinding a conditional job offer to a prospective employee pursuant to a policy established under subdivision (1) of subsection (b) of this section

But wait, there's more!

Boards of education are governmental entities, and they are therefore subject to the restrictions set out in the Bill of Rights, including the Fourth Amendment, which prohibits unreasonable searches and seizures. In certain (but limited) circumstances, suspicionless (or random) drug testing of public employees will be permitted. In two cases, the United States Supreme Court ruled that such testing was allowed. In one case, a federal statute required that employees responsible for operating a train be tested...