Marijuana and the workplace: what effects recriminalization can have

Marijuana and the workpla…

Possession and use of marijuana has been legal in Virginia for the last year, and yet, the status is still subject to strange standards and potentially striking penalties. As many may recall, back in 2021, the possession of marijuana was largely decriminalized; making it legal to possess a small amount for personal use, and even making it legal to give to other adults and grow your own plants. However, around the same time as all of these laws coming into effect, Virginia passed additional measures that recriminalized possession of marijuana in excess of 4 ounces, with a first offense being a class 3 misdemeanor punishable by up to a $500.00 fine; second and subsequent offenses being a class 2 misdemeanor, punishable by up to 6 months in jail and up to a $1000.00 fine.

This begs the question, what is legal now? Adults 21 years and older may use marijuana in private residences, though nothing prohibits the owner of a private residence from restricting the use of marijuana on its premises. Adults may also grow up to four plants per household, and adults may share marijuana between each other. It may not be sold or offered as a gift given contemporaneously with another transaction or given as a gift in conjunction with another offer for sale of goods or services, or be used as a gift contingent upon a separate reciprocal transaction. To put it another way, marijuana cannot be offered or exchanged for anything, as a gift connected with anything, or as an add-on with other goods or services.

Aside from the previously mentioned recriminalization of possession of more than four ounces but less than a pound, if you are found to be in possession of more than one pound of marijuana or marijuana product without the appropriate licensure, then you may be found guilty of a felony offense, punishable by not more than ten years in prison and a fine of up to $250,000.00. Additionally, it continues to be illegal for anyone under the age of 21 to consume, purchase, or possess marijuana, or even attempt to purchase, consume or possess marijuana. Most significantly, safety measures persist, such as the prohibition on using marijuana while driving a motor vehicle or even being a passenger in a motor vehicle, no possession on school grounds, while operating a school bus, in a passenger vehicle, or in a commercial vehicle.

That’s all well and good, but what does this have to do with anything for your business? Simply put, the impact of marijuana legalization, decriminalization, and partial recriminalization depends on your specific business. One of the first questions that often comes to mind is drug testing. Is it still permissible for an employer to test employees even though marijuana is legal? The short answer is yes, it is still permissible and acceptable to drug test employees. In fact, it should be encouraged at this point. Virginia law even provides a safe harbor for employers to test employees who work in certain regulated jobs, such as any position which is heavily regulated under outside agencies, or employees who are specifically regulated under federal contracts or federal regulations. These safety sensitive employees are often employees whose jobs require them to be fully aware and alert, due to the hazardous nature of their specific jobs, and as such, employers are encouraged to monitor them for anything that may impact their capacity to safely and effectively execute their tasks. Along those same lines, an employer needs to look at the federal status of marijuana. It is still illegal at the federal level. Next, does your workplace qualify as a federal “drug free zone?” Finally, do you have any employees that fall under safety sensitive positions, such as operating heavy equipment, CDL drivers, and many other positions.

At the very least, in Virginia it would be good practice to treat marijuana with the same tolerance that you would treat alcohol. Keeping a short leash on anything that may put your employees or customers at risk of an adverse interaction can only benefit your business. With the constantly evolving legal landscape, it’s important to keep your employee handbooks up to date to protect your business, your employees, and your reputation. If you need help reviewing, updating, or even creating your employee handbook, please consider reaching out to the professionals at Setliff Law. For any additional information please contact John Stacy ( at (804) 377-1263, or Steve Setliff ( at (804) 377-1261.