Virginia Marijuana Laws Go Up in Smoke

Virginia employers still adjusting to numerous new laws that have taken effect in 2020 and 2021 also need to be aware of permissive changes in Virginia marijuana laws, which affect employment practices both directly and indirectly.

Effective July 1, 2021, adult possession of less than an ounce of marijuana, recreational use of such amounts at home, sharing of such amounts among adults, and cultivation of up to four marijuana plants per household are no longer prohibited by Virginia law. Possession of larger amounts is presumed to reflect intent to distribute, and remains illegal under Virginia law, as does public use. Cultivation is heavily regulated. Plants must be grown out of public view, and each plant must be labeled with the owner’s name, driver's license or identification number, and the fact that it is for personal use.

Use, cultivation, and possession of marijuana remain generally illegal under federal law, as does transporting marijuana between states (or D.C.) even if possession of the transported amount is legal in both. Nor do this year’s changes yet permit the sale of marijuana for recreational use under Virginia law, nor the sale of seeds. However, the law contemplates dispensaries opening in Virginia to sell for recreational use in 2024.

Despite these changes, private actors remain generally free to prohibit marijuana on their premises, discriminate against users, or bar intoxicated users, with specific exceptions that apply to employers.

Va. Code § 19.2-389.3(B) now provides that employers may not, in any application, interview, or otherwise, require an applicant for employment to disclose information concerning any arrest, criminal charge, or conviction for certain misdemeanor marijuana offenses (including both possession and distribution), and that an applicant, if asked, “need not” disclose information about such convictions. To comply, application and interview questions about criminal convictions should be adjusted to allow the exclusion of information protected by this section.

Va. Code § 40.1-27.4 further now provides that an employer may not “discharge, discipline, or discriminate” against an employee for lawful use of medicinal cannabis oil if they have a “valid written certification issued by a practitioner” under applicable Virginia law to treat a diagnosed condition or disease. “Cannabis oil” is defined in Va. Code § 54.1-3408.3 to include oils containing at least specified amounts of CBD or THC-A, which are thought to be medicinal but not intoxicating, and limited amounts of the key marijuana intoxicant THC. (Burning marijuana converts THC-A to THC).

Medically-prescribed use of cannabis oil thus becomes a protected activity for Virginia employees, at least where it does not affect work. Employee use of cannabis oil will thus usually need to be treated similarly to use of other legal medications that may affect an employee’s ability to work or work safely, like antihistamines. Some employers and industries will remain subject to federal drug-testing requirements, which will control over contrary state law.

Asking an employee about medically-prescribed use of cannabis oil may also be a medical inquiry that can be made only for business necessity under the amended Virginia Human Rights Act (HRA). By its terms, Section 40.1-27.4 does not protect job applicants, but asking an applicant about the use of legally-prescribed cannabis oil may lead to trouble under the HRA, as such a question arguably suggests an intention to discriminate on the basis of whatever “condition or disease” (likely a “disability” under the HRA) that has caused the employee to be prescribed. As with asking a female applicant if she is pregnant, the reasoning goes, why would you ask if you don’t intend to use the answer in your decision?

Employers should review their existing drug and alcohol policies for compliance with the new rules. However, none of the legal changes surrounding marijuana prohibit Virginia employers from:

• asking applicants in job interviews or employees about recreational marijuana use,
• prohibiting, disciplining, or refusing to hire people who engage in recreational marijuana use,
• prohibiting employees from using, possessing, buying, selling, or being under the influence of marijuana on company premises, company jobs, company functions, or company time,
• sending employees for a drug test if they reek of weed or display other signs of drug use, or
• enforcing attendance rules.

Drug tests of applicants and employers are indirectly affected by the new Virginia marijuana laws. Tests that may be triggered by use of cannabis oils should likely be handled similarly to tests for opiates – prescribed use may explain a sample that would otherwise be positive for marijuana, and thus allow such a sample to be reported as “negative” for illegal drug use. However, the gathering and evaluation of information about use of cannabis oil should generally be left to a Medical Review Officer (MRO) or other qualified professional to be done without disclosure to the employer.