News, Insights & Events
The ‘Doobieous’ State of Marijuana Legalization for Virginia Employers
May 19, 2021
Lindsay K. Bunting Eubanks
Sands Anderson PC
Richmond, Virginia
Even though Virginia will officially legalize the possession and distribution of small quantities of marijuana this summer, marijuana in all of its forms remains illegal under federal law. Federal prohibitions include marijuana or cannabis oil used as a prescription medication. In spite of these federal prohibitions, Virginia law as of July 1 will prohibit discrimination against employees discharged for the prescription-based use of cannabis oil, unless the employer fits into certain enumerated exceptions “baked” into the law.
The contradictions between the new Virginia laws and federal law can put employers in a tense situation, especially when their business involves federal grants and/or contracts. However, the new law provides that nothing shall “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,” and no employer shall be required to jeopardize federal funding or federally based contract work in order to comply. Also, if work requires the use or operation of machinery, heavy equipment, or vehicles, including those needing a CDL license, an employer may still prohibit the use of marijuana, including medical marijuana, by its employees. However, employers with less connection to the federal government or whose employees will not risk the health and safety of their workplaces with the consumption of medically based cannabis oil should tread lightly to avoid any potential discrimination claims. Employees can still sue for retaliation against an employer when they are fired for reporting a suspected violation of state law or regulation.
The new Virginia law also presents complex questions over how an employee can prove that a cannabis positive drug test is the result of the use of cannabis oil and not the result of recreational marijuana use. Also, because marijuana remains in one’s system for weeks, it can be difficult for an employer to know if an employee continues to be under its influence or is safe to work and no longer suffers from any impairments of judgment. These questions will not be easy to answer going forward for the employer seeking to maintain a marijuana free workplace.
One thing the new law is clear on, employees will not be able to use marijuana while working. Virginia law specifically allows employers the ability to “prohibit possession during work hours.” The newly formed Virginia Cannabis Control Authority may even revoke or suspend the license granted to any marijuana retail establishment for marijuana consumption on its premises. In fact, under the new law, consumption of marijuana is extremely limited. Using or consuming marijuana or marijuana products while either a driver or a passenger in a vehicle is forbidden, and, consuming marijuana or marijuana products in any public place is also illegal. Therefore, while it will be hard for certain employers to prohibit completely the use of cannabis oil at home, it is certain that employers may strictly prohibit the consumption of marijuana while on the clock. In other words, “joint breaks” are not the new “smoke breaks” under Virginia law.
So, what are some employer action items before July 1:
First: review all workplace drug and alcohol policies. If you are an employer with CDL employees or an employer with close ties to the federal government, who receives federal funds, or who participates in federal contracts, make sure to explicitly tie your policies to federal law.
Second: explain your marijuana policies to your employees before July 1st. Make sure that all employees have clear guidelines to follow and know the consequences if they chose to consume any marijuana product, especially while on the job.
Third: if you have an employee who asserts the need to use cannabis oil for a medical condition and with a medical prescription, make sure to engage that employee in the interactive process to see if an appropriate accommodation might be made unless you qualify for an exception under the law.
Fourth: reach out to an attorney with your questions and concerns.