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Can Employees Still Get Fired By Their VA Employer for Using Recreational Marijuana in Their Free Time?

  • By: lipplaw
  • Published: July 6, 2021

Lipp Law Attorney Sarah Mugmon sat down with WUSA9 to discuss why Virginia employers may still test for weed and what you should do if you come face-to-face with a positive test.

From the article: 

“Mugmon has had a handful of cases from clients facing a similar situation through the years, although she has seen fewer recently as weed has become less stigmatized and legalization policies continue to expand. She explained that although the situation is often extremely unfortunate for both the employee and the employer, a bit of empathy isn’t quite enough to diffuse the situation that ensues when an applicant comes face-to-face with a positive test that’s against company policy.

Mugmon explained that the issue with testing is that the results, whether positive or negative, must be treated in the same way across the board; or else the employer could be opening themselves up to a lawsuit.

“They need to make sure they’re implementing consistent policies across the board for all employees, otherwise they could fall into a potential trap,” Mugmon said. “Depending on the protected groups that those employees belong to, whether it’s race, sex, religion; some of those things could come into play, if they’re treating employees differently, depending on their test results.”

Despite legalization policies like those that have recently been implemented in Virginia in July and those that have been in place in the District since 2015, employers still have the right to do their own testing and hand out consequences as they wish. However, in D.C., there are some restrictions on when an employer can do a test. Employers in the District can only test a prospective employee for marijuana use after a conditional offer of employment unless otherwise required by law.

Mugmon shared that the most common jobs for weed testing these days include federal positions (due to the fact that weed is still federally illegal), those dealing with vulnerable communities, confidential or classified information and people operating heavy machinery.

So why are employers still testing for weed at all? 

“The explanation is typically business-related: we want to make sure our employees are able to perform and function to the best of their ability and are not under the influence of anything,” Mugmon said. “The issue with testing is that cannabis stays in your system for 30 to 90 days, depending on the type of testing. So it’s not necessarily an accurate indicator of whether that person is under the influence at the time of work hours.”

No matter how hard of a worker you are or how much you aced an interview, a positive test could still be a firm deal-breaker at certain places of employment. What should you do if you do end up with a positive result?

Mugmon advised that if you find yourself facing consequences, it’s probably best to consult with a lawyer to potentially make an argument for why you’re still capable of performing your required job duties.

“[An attorney] can help organize all of the facts and see whether it is worth the fight or whether you want to admit it,” she said. “Sometimes it might not be in the best interest to fully explain oneself.”

See the WUSA9 segment here:

Kathryn Megan Lipp

Katie dedicates her practice to employment separation guidance.
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