Effective July 1, 2021, Virginia law prohibits an employer from discharging, disciplining, or discriminating against an employee for lawful use of cannabis oil based on a valid written certification.
However, the law does not:
• Restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours;
• Require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding; or
• Require any defense industrial base sector employer or prospective employer to hire or retain any applicant or employee who tests positive for THC in excess of specified amounts.
(H.B. 1862: Va. Code Ann. § 40.1-27.4)
Virginia law, effective July 1, 2020, prohibits the disclosure of records relating to the arrest, criminal charge, or conviction of individuals in violation of Virginia law for the possession of marijuana. The law contains only 12 circumstances for which the records may lawfully be disclosed, including:
To serve as a full-time or part-time employee of:
• The State Police;
• a police department; or
• a sheriff’s office.
To screen employees or volunteers of:
• Any emergency medical services agency; or
• the Department of Forensic Science.
(Va. Code Ann. § 19.2-389.3(A))
The law prevents an employer or educational institution from requiring an applicant for employment to disclose information concerning any arrest, criminal charge, or conviction for possession of marijuana if a valid exception does not exist (Va. Code Ann § 19.2-389.3 (B)). Any willful violation of the law is punishable as a Class 1 misdemeanor (Va. Code Ann § 19.2-389.3 (D)).
While the law does not specifically address drug testing, it is recommended that practitioners carefully consider whether the position in question falls within one of the listed exceptions or another safety reason applies before requiring drug screening for marijuana.
Frequently Asked Questions:
How to respond to employees who are asking if this law changes their pre-hire, random, reasonable suspicion, and post-accident drug testing policies?
Employees who use marijuana recreationally will not be protected from employment discrimination. Even though marijuana was fully legalized July 1, 2021, Virginia remains an at-will employment state. Accordingly, employers can require drug testing before employment, at random times, post-accident or based on reasonable suspicion so long as there is no discrimination against employees who are legally allowed cannabis for medicinal reasons.
Should the employer consider a memo to send to employees reiterating their company policy?
Probably a good idea!
What should the memo state in general regarding the law change and employee protections?
Effective July 1, 2021, Virginia law prohibits an employer from discharging, disciplining, or discriminating against an employee for lawful use of cannabis oil based on a valid written certification. However, the law does not restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours. At XYZ Company, we respect our employees’ rights to engage in medical or recreational cannabis use outside of work hours. However, our employees must not work while under the influence of, or otherwise impaired by, cannabis, other controlled substance, or alcohol.
Should employers consider dropping random testing because medicinal THC can show up in employee’s blood stream much longer than alcohol?
Employers may wish to consider only testing for reasonable suspicion or post-accident because medicinal THC can show up in an employee’s system much longer than alcohol.
How should an employer treat employees who claim that they have a valid medical marijuana card?
Effective July 1, 2021, Virginia law prohibits an employer from discharging, disciplining, or discriminating against an employee for lawful use of cannabis oil based on a valid written certification. However, the law does not restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours.
What classifies as a “safety sensitive job,” therefore, permitting employers to lawfully ban employee marijuana use?
Unfortunately, there is no guidance on this yet. However, in most states the definition is more-or-less common sense: If I can hurt myself or others by doing my job improperly, it’s “safety-sensitive.” Think work at heights, confined spaces, use of motorized tools or equipment, heavy lifting, hot things, sharp things, HAZ-MAT, driving, forklift operating, etc.
What questions may they want to ask their testing laboratory to make sure that they are aware of the permitted levels of cannabis oil under the new law?
Labs should be up to speed on the new law. However, it might not hurt to ask the Medical Review Officer (MRO) what is and is not tested on their panel screenings.
How should employers treat pushback from an employee for a positive test?
Just like with alcohol – it is legal to use, but not legal to be impaired by it at work.
*Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice.
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