Employment Law Early Guidance: How Does Virginia’s New Marijuana Law Impact Employers?

Many employers maintain “zero-tolerance” drug policies, prohibiting employees from working under the influence of alcohol and illegal drugs. On May 21, 2020, Governor Northam signed legislation that, starting July 1st, decriminalizes possession and consumption of up to one ounce of marijuana1, but provides for a civil penalty of up to $25.  This new marijuana-decriminalization law raises several questions about possible impacts on employment policies and practices.

Decriminalization Does Not Impact Employee Drug Testing
Because federal law preempts this state statute, Virginia's new statute does not impact the U.S. Department of Transportation's drug testing regulations for CDL holders, which ban employees from driving commercial vehicles if they test positive for marijuana. Likewise, it will have no impact on the Americans with Disabilities Act (“ADA”), which exempts from its protections the “illegal use of drugs” and further defines that term to include marijuana. As a result, employers can continue to drug test employees and terminate an employee who tests positive for marijuana—even if that employee is disabled, prescribed medical marijuana and only uses marijuana on his or her own time. The law also does not prohibit employers from withdrawing job offers to applicants who test positive for marijuana on pre-employment drug testing.

Virginia's New Law Does Impact Other Employment Practices 
When it takes effect on July 1st, the new Virginia law will prohibit requiring applicants to disclose information related to past criminal charges for possession of up to one ounce of marijuana. Therefore, all employers should immediately examine their employment applications and either eliminate questions about prior drug convictions or clarify that applicants are not required to disclose convictions for possession of one ounce or less of marijuana.

Additionally, employers may want to amend their employee handbooks and company policies that simply ban the use of "illegal drugs”; adding a short clarifying statement that existing policies continue to prohibit employees from “testing positive for, or being under the influence of and/or possessing alcohol, marijuana or illegal drugs on the work premises” should suffice.

More Changes May be Coming to Virginia 
Virginia's new law requires the state Secretary of Health and Human Services and other agencies to study the impact of legalizing the sale and personal use of marijuana in Virginia. The workgroup must report its recommendations to the General Assembly and the governor by November 30, 2020. Therefore, employers should be on the watch for new legislation on this issue, as further changes to employee handbooks or policies may be required.

Attorney Tom Shumaker of the Ernest Law Group assists businesses with understanding their employer obligations and maintaining legally-compliant policies and practices through consultations and outside-counsel retainer agreements. If you would like assistance complying with new and evolving laws and regulations, writing employee handbooks/policies or counsel regarding wage and hour or human resource life-cycle management, you can reach Tom at (757) 289-2499 or [email protected].

1.   https://lis.virginia.gov/cgi-bin/legp604.exe?201+bil+HB0972&201+bil+HB0972.  In addition to approving marijuana decriminalization, Governor Northam also enacted Senate Bill 101, which, in part, provides that a person who possesses marijuana in the form of cannabidiol oil or THC-A oil pursuant to a valid written certification issued by a practitioner in the course of his professional practice shall not be prosecuted for simple possession of marijuana. It also takes effect July 1, 2020.

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