Effective today, July 1, 2021, Virginia has some new laws concerning cannabis products that employers should note. Adults aged 21 and older may possess and use up to one ounce of cannabis in private residences. Adults may also grow up to four cannabis plants. These home-grown plants should be kept out of public view, away from people under 21, and labeled with ID tags. It will still be illegal to do any of the following:
- use cannabis in public
- possess more than one ounce of cannabis
- possess or use cannabis anywhere if you are under 21
- sell cannabis in any quantity.
Commercial sales in Virginia will not begin until 2024.
Employers should take particular note of a new law which provides protections for employees’ medicinal use of cannabis oil, a term that encompasses a variety of cannabis products. The new law prohibits an employer from discharging, disciplining, or discriminating against an employee for such employee's lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee's diagnosed condition or disease. The law provides, however, that such prohibition does not (i) 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; (ii) 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; or (iii) require any defense industrial base sector employer or prospective employer to hire or retain any applicant or employee who tests positive for tetrahydrocannabinol (THC) in excess of certain amounts.
In view of the new legislation liberalizing marijuana use and possession, employers should review 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.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.
