Virginia Medical and Recreational Cannabis: Drug Testing Impacts | April 2021

April 23, 2021

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The Virginia legislature has been busy passing cannabis laws. In late March of 2021 Governor Ralph Northam signed House Bill 1862 (“Medical Cannabis Law”) into law, prohibiting discrimination in employment against medical marijuana users. Then, in April of 2021 Governor Northam signed Senate Bill 1406 (“Recreational Cannabis Law”), legalizing recreational cannabis use. Generally speaking, the Medical Cannabis Law is more impactful to employer drug testing than the Recreational Cannabis law.[1]

Virginia Medical Cannabis Law

The Virginia Medical Cannabis Law comes into effect on July 1, 2021 and specifically addresses discrimination against legal medical cannabis users in employment. The law prohibits employers from “discharg[ing], disciplin[ing], or discriminat[ing]” against employees who use medical cannabis, so long as employees have valid written certification issued by a practitioner to treat symptoms of certain conditions or diseases.

That said, employers can still prohibit impairment caused by cannabis and can prohibit possession during work hours. The law also does not require employers to do anything that would result in the violation of federal law or to lose a federal contract or funding.

Virginia Recreational Cannabis Law

The Virginia Recreational Cannabis Law also comes into effect on July 1, 2021 and eliminates criminal penalties for simple possession of marijuana, allows adults age 21 and older to possess and cultivate small amounts of marijuana, and provides a process to expunge convictions for certain marijuana-related crimes. The law also creates a Virginia Cannabis Control Authority, which will ultimately regulate the cultivation, manufacture and sale of retail marijuana.

Virginia’s new recreational cannabis law is silent regarding the employer-employee relationship. So, without additional regulatory guidance, this law does not change generally accepted principles about how employers can control their workplaces. For example, the law does not prohibit employers from testing applicants for marijuana, employers can continue prohibiting possession and impairment in the workplace, and presumably maintain a written zero tolerance policy related to recreational marijuana use.

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes.  First Advantage is not a law firm and does not offer legal advice.  The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice.  First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information.  Regulatory developments and impacts are continuing to evolve in this area.

[1] Sources: Current Consulting and the law. Recreational Cannabis Law: https://lis.virginia.gov/000/chapter550.pdf. Medical Cannabis Law: https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0395+pdf.

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