What HR Needs to Know About Virginia’s Marijuana Laws

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On May 21, Virginia Governor Ralph Northam signed legislation that decriminalizes marijuana possession, joining a majority of states that have ceased treating the drug as a criminal offense. Here’s what employers in Virginia need to know about these changes once they go into effect on July 1.

Summary of Virginia’s Marijuana Law for Employers

Under current Virginia law, possession of marijuana is punishable by a maximum fine of $500 and a maximum 30-day jail sentence for a first offense. For a second offense, the individual is guilty of a Class 1 misdemeanor — meaning up to 12 months in jail, a fine of up to $2,500, or both. The new law goes into effect July 1 and creates a civil penalty of no more than $25 for possession of up to an ounce of marijuana with no jail time. A summary of the new law:

  • Any violation will be charged by a summons, which looks the same as the uniform summons for motor vehicle law violations, and that no court costs can be assessed for these violations.
  • Possession of low amounts of marijuana won’t be recorded in a person’s criminal history and that records of any charges or judgments won’t be reported to the state’s Central Criminal Records Exchange.
  • If a violation happens while a person is driving, it will be reported to the Department of Motor Vehicles and included on the individual’s driving record.
  • Records relating to arrests, charges, and convictions for marijuana possession will be sealed "except in certain circumstances." 
  • Employers and educational institutions will be prohibited from asking individuals to disclose such arrests, charges or convictions.

Virginia is now the 27th state to decriminalize simple cannabis possession, according to the cannabis legalization organization, Marijuana Policy Project. While the laws vary slightly, 27 states and Washington, D.C. have enacted laws to stop jailing their residents for possession of small amounts of marijuana. In 11 of those states, marijuana is legal for adults 21 and older, while 16 have “decriminalized” simple possession of marijuana. Most of the decriminalization states impose a civil fine, which avoids the life-altering collateral consequences a criminal record carries. See a map of marijuana laws by state as of May 2020 here.

RelatedThe State of Marijuana at Work in 2020

All marijuana use is still illegal under federal law. Marijuana is listed as a Schedule I drug under the Controlled Substances Act, which means that it is deemed to have no medical value and a high potential for abuse. However, state laws mean that how we handle background screening with regards to the legal use of marijuana has changed significantly, especially in states where medical marijuana is legal. For example, In March 2019, a New Jersey appellate court ruled in a lawsuit between a funeral home and a former employee with cancer that employers cannot automatically fire medical marijuana users for failing a drug test since they may be protected under the state’s Law Against Discrimination (LAD) since New Jersey legalized medical marijuana in 2010.

Is Marijuana a Reasonable Accommodation Under the ADA?

This can be complicated further by the fact that employees with disabilities are protected by the ADA from job discrimination regarding pay, training and working conditions. The law also states that employers may use the Drug-Free Workplace Act to require employees to conform to drug policy. However, the ADA doesn’t include drugs taken under the supervision of health professionals in its definition of illegal drugs.

In April of 2019, the New York City Council passed a bill that prohibits New York City employers from requiring applicants to submit to drug testing for the presence of THC, the active ingredient in marijuana, as a condition of employment. The bill became a law on May 10, 2019, so New York City employers were required to comply with the marijuana drug testing ban by May 10, 2020. However, there are exceptions to the law for specific jobs that have safety requirements such as driving or otherwise operating heavy machinery.

Compliance by employers for drug testing and candidate screening has become somewhat of a legal minefield. States have different rules on when a positive marijuana test can be used to discipline or refuse to hire a worker and what steps employers have to take before they can take adverse employment actions for marijuana use. The decision should be based on the employee’s marijuana use in relation to company policy, rather than his or her medical condition. While marijuana is not legal on a federal level, it is common for states passing marijuana legalization statutes to not address marijuana use in the workplace. 

With the varying state legislation that has been introduced in the last five years alone, employers are not just evaluating drug screening for candidates and employees, but also how to update workplace drug policies, OSHA guidelines, and adherence to the Americans With Disabilities Act in order to remain compliant on a state and federal level. By partnering with an experienced vendor for background screening and consulting with legal counsel, you can ensure that your company is following the most up-to-date legal guidelines with regards to the personal or medical use of marijuana.