Virginia Legalizes Marijuana and Bolsters Employee Protections: What Employers Need to Know – JD Supra

Ready or not, Virginia – on July 1, 2021, marijuana becomes fully legal for adults to use and possess in-state.[i] Virginia is now the 16th state to legalize cannabis for recreational purposes.[ii] More importantly, for Virginia employers, is that Virginia becomes the 13th state to expressly provide employment protections for medical marijuana cardholders[iii] by prohibiting employers from terminating, disciplining, or otherwise discriminating against an employee “for such employee’s lawful use of cannabis oil pursuant to a valid written certification.”[iv]

These new statutes will affect Virginia employers in significant ways. Virginia employers will now have to address what they can do if a current employee is suspected of being impaired at work; what obligations do they have to reasonably accommodate medical marijuana cardholders; and overall, whether employers in certain industries can require drug testing for marijuana at all.

Implications for Employees Using Cannabis

Even though the 2021 laws provide employment protections to medical marijuana users, there are important caveats that should not be overlooked. Specifically, while the statutes provide anti-retaliation protections for an “employee’s lawful use of cannabis oil based on a valid written certification,” the 2021 medical marijuana employment protection law does not:

Restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours. Va. Code Ann. § 40.1-27.4(C)(i). Require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding. Va. Code Ann. § 40.1-27.4(C)(ii). Require any “defense industrial base sector employer or prospective employer”[v] to hire or retain any applicant or employee who tests positive for THC in excess of specified amounts. Va. Code Ann. § 40.1-27.4(C)(iii).

As a practical approach

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