Most employers have policies in their employee handbooks prohibiting the use or possession of alcohol or illegal drugs in the workplace. These policies also typically permit drug testing of employees in certain circumstances, and provide for discipline if an employee tests positive for banned substances. In view of recent legislative developments in Virginia and nationally concerning marijuana, employers should revisit those handbook policies and determine whether any revision is appropriate.
Under the Americans with Disabilities Act (ADA), employers are required to make reasonable accommodations for qualified employees with disabilities. Although recovering drug addicts do have some protections under the ADA, it does not protect illegal drug use. Marijuana remains an illegal drug under federal law, with no exceptions for medicinal use, so its use is not protected under the Act. Federal courts have generally ruled that the ADA does not require a medical marijuana accommodation.
Some states have enacted laws decriminalizing marijuana, and others provide protection for the use of medical marijuana by workers. In 2020, Virginia enacted laws partially decriminalizing marijuana use and possession, and also providing for medical marijuana. Although Virginia has not yet passed a law that specifically prohibits an employer from firing or disciplining registered medical marijuana patients for testing positive for the drug at work, it is arguable that Virginia employers must now make reasonable accommodations for employees using medical marijuana who have a prescription or certification from a medical practitioner.
It appears that the current session of the Virginia General Assembly will result in additional new legislation further liberalizing marijuana use and possession. In anticipation of those changes, and in view of last year’s legislation, employers should begin reviewing their drug policies to determine whether revision is appropriate. In addition to considerations of medical marijuana accommodation, employers should consider whether to exclude marijuana as a prohibited substance from their workplace drug policies. Because marijuana can be detected in a drug test for days or even weeks after use, a positive test for the substance does not necessarily indicate that the worker is impaired or even used it on the day in question.
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