Ready or Not, Virginia – On July 1, 2021, marijuana becomes fully legal for adults to use and possess in the state.[i]Virginia is now the 16th state to legalize recreational cannabis.[ii]More importantly, for Virginia employers is that Virginia becomes the 13th state to specifically provide employment protections for medical marijuana cardholders.[iii]prohibiting employers from terminating, sanctioning or otherwise discriminating against an employee “for the legal use of cannabis oil by that employee in accordance with a valid written certificate”.[iv]
These new laws will significantly affect Virginia employers. Employers in Virginia will now have to ask what they can do if a current employee is suspected of being impaired at work; what obligations do they have to reasonably accommodate medical marijuana cardholders; and overall, whether employers in certain industries may require marijuana testing at all.
Implications for Employees Using Cannabis
While the 2021 laws provide employment protections for medical marijuana users, there are some important caveats that should not be overlooked. Specifically, while the statutes provide protections against retaliation for “the legal use of cannabis oil by an employee on the basis of a valid written attestation”, the medical marijuana does not:
- Restricting an employer’s ability to take adverse employment action for any disability at work caused by the use of cannabis oil or prohibiting possession during working hours. Go. Code Ann. § 40.1-27.4 (C) (i).
- Require an employer to commit any act that would cause the employer to be in violation of federal law or this would result in the loss of federal contract or federal funding. Go. Code Ann. § 40.1-27.4 (C) (ii).
- Require any “defense industrial base sector employer or potential employer ”[v]to hire or retain any candidate or employee whose THC test exceeds specified amounts. Go. Code Ann. § 40.1-27.4 (C) (iii).
As a practical approach to addressing these issues, employers should focus on the various types of employees who use cannabis – namely, (A) employees in highly regulated positions or for certain federal contractors; (B) employees who only use marijuana for recreational purposes; and (C) employees who consume marijuana and hold a certified medical marijuana card.
A. Employees in regulated positions
As a general rule, employees who occupy positions sensitive to security or otherwise regulated by outside authorities, including employees specifically performing work under federal contracts or for certain federal contractors, will not be protected with regard to the use of marijuana in any form. Safety sensitive jobs are heavily regulated by federal agencies, as they are highly dependent on employees being fully vigilant and aware of safety risks and potential dangers at all times. Due to the sensitive nature of these positions, federal regulations allow employers to legally prohibit the use of marijuana by employees.
Virginia’s marijuana laws of 2021 recognize these potential restrictions and provide a safe haven for Virginia employers for drug testing employees who work in certain regulated jobs. Such tests can take place regardless of whether the employee shows signs of impairment at work or has been certified to use marijuana for medical purposes.
Federal contractors were also excluded from the new Virginia law, which specifically provides that an employer is not required by law “to do anything that would cause the employer to break federal law or that would result in loss of a federal contract or federal funding. As such, employers who qualify for this exception can test for marijuana and can also fire or discriminate against employees who test positive for THC.
However, it’s important to note that contracting with the federal government does not automatically exempt employers from signing up to Virginia’s new employee coverage for medical marijuana.[vi]Whether a workplace is required by federal law or as a condition of a federal contract to test certain employees for marijuana must be assessed on an individual basis, on a case-by-case basis.
B. Employees who use recreational marijuana
Employees who use recreational marijuana will not be protected from discrimination in employment. Even though marijuana will be fully legalized on July 1, 2021, Virginia remains an unlimited employment state. Therefore, employers can require drug testing before employment, at random times, after an accident or on the basis of reasonable suspicion as long as there is no discrimination against employees. who are legally authorized to use cannabis for medical reasons. However, Virginia employers may wish to consider testing only on reasonable suspicion or after an accident, as medicinal THC may appear in an employee’s system much longer than alcohol.
vs. Employees holding a medical marijuana card
Medical marijuana cardholders have the best employment protections under the Virginia statutes. Although medical marijuana has been legal in Virginia in one form or another since 2015, previously a medical marijuana card only protected people from criminal prosecution, not possible adverse employment actions. However, as of July 1, 2021, the Virginia Code prohibits an employer from “firing, sanctioning or discriminating against an employee for lawful use of cannabis oil on the basis of a valid written certificate”.[vii]Under the Virginians with Disabilities Act (VDA)[viii]and the Virginia Human Rights Act (VHRA),[ix]an employee must disclose their medical marijuana authorization status when and if accommodation is required; which, in the case of medical marijuana, generally occurs when an employee is tested for drugs.
Under Virginia’s new job protection law, if the employee reveals that he has a medical marijuana card and the drug test then comes back positive for marijuana, the employer cannot fire or discipline the employee. only based on the positive test. Employers must therefore ensure that they properly document all other reasons which would justify adverse action in favor of employment.
Also remember that while Virginia’s new medical marijuana law applies to all employers in Virginia, as noted in Part A above, federal contractors and other businesses working in certain regulated industries federal government are legally excluded from the obligation to comply with the law if they do so. would put them in violation of federal law or in violation of their federal contract.
It also means that, if a (non-mandated) workplace wants to allow the “pass” of a marijuana test for employees with a medical marijuana recommendation, the employer has two options. The employer can remove the marijuana from the drug test panel or the employer can continue to test the marijuana and, in the event of a positive result for marijuana, follow the actions declared in the employer’s policy to respond an employee’s assertion that his or her use of marijuana is medically authorized.
In all cases, employers should have policies in place regarding medical marijuana cardholders, which may be similar to those for employees who may require reasonable accommodations for unrelated reasons, such as religion or religion. handicap. In such a policy, employers should make it clear to employees how to engage in an interactive process to determine what reasonable accommodations, if any, can be made with respect to an employee’s off-site marijuana use. Employers should then systematically follow established procedures. As always, Virginia employers should consult with qualified legal counsel before taking adverse action, especially in situations where an employee may have medical clearance.
[ii]Here, “marijuana” and “cannabis” are used interchangeably and refer to raw marijuana and cannabis-derived products with minimum levels of tetrahydrocannabinol (THC) that have been determined by regulators to have certain psychoactive qualities.
[iii]As of April 2021, twelve states had similar job protection laws for licensed medical marijuana users, including Arizona; Colorado; Connecticut; Delaware; Illinois; Maine, Minnesota, Nevada, New Mexico, New York, Oklahoma, Oregon and Rhode Island.
[iv]Go. Code Ann. § 40.1-27.4 (HB 1862) (July 1, 2021).
[v]For a list of authorized employers, visit https://www.cisa.gov/defense-industrial-base-sector-council-charters-and-membership# (last consultation on April 28, 2021).
[vi]While some federal contracts and specific positions require drug testing by regulation, neither the CSA nor the Drug Free Workplace Act (DFWA) require drug testing, and these laws do not expressly prohibit drug testing. federal contractors to employ someone who uses marijuana outside of the workplace. , unless otherwise stated. Instead, the DWFA only demands that employers make a “good faith effort” to maintain drug-free workplaces and prohibits the use, distribution, and possession of drugs on federal contract sites. See 41 USC § 8102 (a) (1) (G).
[vii]Go. Coded. Ann. § 40.1-27.4 (B).
[viii]The Virginians with Disabilities Act (VDA) prohibits employment practices that discriminate against qualified people with disabilities (VA Code Sec. 51.5-41). VDA covers all employers, whatever their size (Yates v. Volunteer Health Care Sys., 783 F. Supp. 1002 (WD Va. 1992)).
[ix]Effective July 1, 2021, the Virginia Human Rights Act (VHRA) prohibits discriminatory employment practices based on disability (VA Code Sec. 2.2-3900 et seq.). The 2021 changes to the VHRA also require employers with five or more employees to provide reasonable accommodation for known physical and mental impairments of an otherwise qualified person with a disability, if necessary to assist that person in performing a particular job, unless the employer can demonstrate that the accommodation would impose undue hardship on the employer (VA Stat. Sec. 2.2-3905).