Virginia has now joined the ranks of several other states in legalizing marijuana for recreational use. Effective July 1, 2021, residents of the Commonwealth will be permitted to possess and use marijuana (up to 1 oz.) in their homes for recreational purposes. Consuming or possessing marijuana in public will still be illegal. The new law also provides protections against discrimination for using medical marijuana (which has been legal in Virginia since 2015) in the workplace.
Navigating legalization in the workplace can be difficult. Keep the following in mind:
- Certain regulated jobs can ban the use of marijuana despite it being legal. Many jobs, such as those involving security clearances (government contractors) and heavy machinery licenses (i.e. Commercial Driver’s License) require that employees work without being under the influence of drugs or alcohol. Virginia’s new law provides a “safe harbor” for these professions to drug test and discipline employees for being under the influence at work at any time (despite the fact that recreational use is permitted). There is no bright line rule for this category and therefore employers should analyze whether their specific workplace falls under the “safe harbor.” Employers should also review their existing policies on drug use at work as well as testing to ensure that they do not discriminate against employees who are using marijuana for medical purposes.
- Employers can face harsh penalties for “mistakenly” disciplining someone that uses medical marijuana. Virginia’s new law prevents employers from taking adverse employment actions (discharge, discipline, termination, etc.) against an employee because of their marijuana use if the they have a medical marijuana card (issued by the state). Employers should therefore make sure that they have a clear policy that is explicit on how those with medical marijuana cards can disclose them to management. Policy should also address how those with a disability can request a reasonable accommodation for marijuana use. This approach promotes clarity for employees while minimizing the strength of potential discrimination claims for employers.
- Employers in “non-regulated” professions can still discipline employees for being under the influence at work. Virginia’s new law does not provide protection for employees that use marijuana recreationally while working if they work in non-regulated fields (i.e. security clearances as noted above). Employers can still discipline employees for being under the influence at work – if the use is directly tied to recreational (rather than medical use, noted above). It should be noted that employers should troubleshoot how to handle employees that may have used marijuana days or weeks before a positive test (as THC can remain in a person’s system for weeks). A clear policy can provide a good foundation for how management will handle “zero tolerance” policies given the reality of how long THC may come up on a drug test.
Feel free to reach out to me to discuss your specific workplace and how to update (or create) your drug policy.
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