The big shift is here! As of July 1, 2021, adults 21 years of age and older can possess, consume, and grow small amounts of recreational marijuana in the Commonwealth. Virginia is the first state in the South to legalize recreational use of marijuana and Virginia employers are expressing concerns over how these new marijuana laws will affect the workplace and whether employers can continue to prohibit possession in the workplace.
New Law and Penalties
Specifically, the new law allows for possession of up to one ounce of marijuana (4 plants per household) for personal use. Adults must ensure plants are out of sight of the public eye, tagged with an ID or driver’s license (with a notation that the plant is being grown for personal use), and users must take precautions to prevent unauthorized use by persons under the age of 21.
The law carves out penalties for individuals caught with more than the legal limit. For example, adults over 21 caught with more than one ounce, but less than one pound, are subject to a $25 fine. Individuals caught with more than one pound of marijuana can be charged with a felony. It remains illegal for anyone under 21 to consume, purchase, or possess marijuana.
Although selling marijuana is illegal in the Commonwealth until 2024, the law permits “adult sharing.” Adult sharing allows adults 21 years of age and older to share up to one ounce of marijuana with other adults in private without remuneration. The law was written to prohibit gifting of marijuana (a practice common in DC where companies sell legal products at higher prices and “gift” free marijuana).
Although the new law is a bit hazy, persons who possess, consume, and grow marijuana in the Commonwealth should make certain they understand what is prohibited under the new law. For example, adults are prohibited from consuming marijuana in public and offering it to people in public as a gift or otherwise. The law also prohibits possession on school grounds and prohibits possession while driving and operating a motor vehicle. If you must travel in the Commonwealth with marijuana, it is recommended that you keep it in the trunk of your vehicle. This is because the legislation creates a presumption that a person has consumed marijuana if an “open container” is found in the passenger area of a vehicle. There is also some confusion about what constitutes an open container since individuals cannot purchase regulated products yet.
Employers vs. Employee Rights
The new marijuana law provisions do not change how employers control their workplace. This means employers are not prohibited from testing applicants and employees for drug use and can continue prohibiting possession and impairment in the workplace. (Currently, there is no clear standard of what constitutes “impairment” in the workplace.)
Although none of the provisions of the new law mean that employers have to allow employees to possess or consume cannabis at work, employers cannot discriminate against employees who lawfully use cannabis oil, so long as the employee has valid written certification issued by a practitioner to treat a diagnosed condition. See Va. Code § 54.1-3408.3. This means that an employer is not allowed to fire an employee based only on a positive test. Employers can still take adverse actions against employees for any work impairment caused by cannabis oil and can still prohibit possession during work hours. See Va. Code § 40.1-27.4 Therefore, employers should document employees’ performance and behavior so that employers have a sufficient basis for termination. (Note, Virginia employers are not required to engage in any conduct that would cause the employer to violate federal law or that would result in the loss of a federal contract or federal funding even where employees are lawfully using cannabis oil.) See Va. Code § 40.1-27.4(c).
Although Virginia is the 16th state to legalize recreational use of marijuana, possession of marijuana is still illegal at the federal level and the new law creates a safe harbor provision for Virginia employers to drug test employees who work in regulated jobs. This means that federal contractors, federal grant recipients, and employees who work in safety sensitive positions who are required to maintain drug free workplaces must abide by federal law.
Additionally, employers governed by the U.S. Department of Transportation must continue to follow federal law by considering the DOT’s regulations regarding possession of marijuana and drug testing. The DOT has made clear that states’ initiatives will not impact the Department of Transportation’s regulated drug testing program, and it remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. It is clear that DOT regulated employees must continue to follow federal law. (The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.”)
There appears to be some debate among motor carriers on whether companies will take the “zero-tolerance policy” or adapt to “accommodate” individuals who present a valid written certification relative to cannabis oil where a physician has certified that THC will not affect the user’s ability to perform his/her job safely. At this juncture however, we think it is best to follow the zero-tolerance policy.
How Changes in the Criminal Code Could Impact Employers’ Criminal Background Check Policies.
- Simple possession (more than one ounce, but less than one pound) is a civil offense and is punishable by a $25 fine as long as there is no intent to sell; therefore, these charges should not appear on employees’ criminal records since simple possession is no longer a criminal offense.
- Employers and educational institutions are prohibited from requiring applicants to disclose information concerning simple possession arrests, criminal charges or convictions during the hiring process. Employers can be charged with a misdemeanor if found in violation. See Va. Code § 19.2-389.3
- Potential automatic sealing of police and court records for certain convictions, deferred dispositions, and acquittals and for offenses that have been nolle prossed or otherwise dismissed. (The bill has staggered delayed effective dates, consult an attorney for specifics.)
- Limits on dissemination of criminal history record information related to certain marijuana offenses subject to certain exceptions.
It is highly recommended that employers review handbooks to ensure they are up to date with the changing laws. Additionally, due to the uncertainty and haziness of the provisions of the new marijuana law, it is suggested employers consult with an attorney regarding specific questions regarding the new law.
For questions or comments, please feel free to contact Cindy S. Foster (email@example.com) at 804-377-1275 or Steve Setliff (firstname.lastname@example.org) at 804-377-1261.