On July 1, 2021, marijuana will become fully legal to use and possess in Virginia. Here is what employers and employees need to know before the law takes effect this summer.
What’s Not Allowed
The new law is clear that employers can still take adverse action against employees who use marijuana if:
- the employee’s performance is impaired by the use of marijuana
- the employee uses marijuana during work hours
This means that although recreational marijuana use will become legal in the home, it will not be protected in the workplace. Recreational users can still be tested, even without suspicion, and terminated at-will is they test positive.
Additionally, the new law does not require employers to hire applicants for defense industrial base sector positions if they test positive for THC, or do anything that would violate federal law or would result in the loss of a federal contract. This means that federal government contractors who are required by federal law to have drug free workplaces can still take adverse action against employees who test positive for marijuana, even if they have medical marijuana cards.
Regarding employees in highly regulated fields, the law provides a safe harbor provision so that employers can still test such employees, even without suspicion of marijuana use, and even if they are medical marijuana cardholders.
Protections for Medical Marijuana Cardholders
Previously, medical marijuana cardholders in Virginia were only protected against criminal prosecution, not adverse employment action. However, beginning on July 1st, employers will be prohibited from “from discharging, disciplining, or discriminating against an employee for lawful use of cannabis oil based on a valid written certification.” However, as noted above, certain federal contractors who are obligated to legally comply with drug-free workplace laws are exempt from this provision.