What does the new recreational marijuana law mean for educators and employers in Montana?

Posted on November 23, 2020

By: Lily Crespo Esq.

What happened? On November 4, 2020, Montana voters approved two ballot measures legalizing the recreational use of marijuana. Adults will be able to use, possess and cultivate cannabis starting January 1, 2021 under the approved measure. That same day, regulators could begin accepting license applications for marijuana retailers.

This did not alter federal law! Of important note to educators and employers, federal law still prohibits marijuana use on school grounds. While recreational marijuana use is now legal in Montana, possessing, using, distributing, and selling marijuana is a federal crime.

Now for a quick look at the new recreational marijuana law…

1. What is it called? There were two measures on the ballot that needed to pass.
   • I-190 provides a regulatory framework to legalize and tax non-medicinal marijuana sales.
   • CI-118 amended Montana’s Constitution to let the state set the legal age for purchasing marijuana at 21 instead of 18. Both measures passed. With 94% of Montana precincts reporting as of Wednesday morning, I-190 was approved by a 57-43 margin, according to AP. CI-118 passed by a 58-42 margin. Both measures were passed by voters.
2. What does it allow? The legalization program is similar to the system currently used by the Montana Department of Health and Human Services to regulate medical marijuana.
   • A 20% tax would be levied on recreational marijuana sales, with revenues split between public land upkeep, drug treatment programs, marijuana regulation enforcement and other uses.
   • Click here for the full ballot language
     

What does this new law mean for schools and employers? Federal law still completely prohibits the use of marijuana on school grounds. The new STATE law does not change this. The new law contains a number of provisions of special interest to schools and employers…

• The use of recreational marijuana is not allowed on school grounds.

  • Section 16. Limitations of act. (1) [sections 1 through 36] do not permit marijuana (i) on the grounds of any property owned or leased by a school district, a public or private preschool, school, or postsecondary school as defined in 20-5-402; OR (ii) in a school bus.

• The new law does not require employers to suddenly start allowing the recreational use of marijuana.

  • Nothing in [sections 1 through 36] may be construed to: (a) require an employer to permit or accommodate conduct otherwise allowed by [sections 1 through 36] in any workplace or on the employer’s property;(b) prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while intoxicated by marijuana; (c) prevent an employer from declining to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of the individual’s violation of a workplace drug policy or intoxication by marijuana while working.

• Finally, the new law specifically gives grounds to the reviewing board to deny the license of a marijuana dispensary if they propose to establish their business near a school.

  • “within 500 feet of and on the same street as a building used exclusively as a church, synagogue, or other place of worship or as a school or postsecondary school other than a commercially operated school, unless the locality allows for a reduced distance. This distance must be measured in a straight line from the center of the nearest entrance of the place of worship or school to the nearest entrance of the licensee’s premises.”

Two important takeaways

1. For schools: The requested use of medical marijuana/CBD oil for students with disabilities (those with Section 504 or IEP plans) would have to be considered on a case by case basis with the assistance of legal counsel.
2. For employers: If you have an employee with a disability who is requesting the use of marijuana or CBD oil as a medical aid, contact legal counsel.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.