Legalize(d) It: Virginia Legalizes Recreational Marijuana

Article At A Glance:

• On July 1, 2021, Virginia legalized recreational marijuana.
• Virginia employers can still require drug testing for jobs where there is a business necessity, or if there is a workplace injury.
• Industries and roles that will likely continue to have commonplace drug testing and policies are government contractors, government workers, security, certain health care jobs, and construction.
• Marijuana stays in the body for a much longer time than other drugs (alcohol, cocaine, heroin, etc.), making it more difficult to determine whether a positive test means that the employee is currently under the influence of marijuana.
• Employers should understand state-specific laws regarding disability and the interplay between disability and the use of marijuana. Marijuana is used medicinally to treat or lessen symptoms related to cancer, glaucoma, PTSD, anxiety, arthritis, epilepsy, and many other health conditions.

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On July 1, 2021, Virginia legalized marijuana for recreational use for adults aged 21 and older, joining the District of Columbia and Maryland. In the District, marijuana is legal for both medicinal and recreational use, and in Maryland it is legal for medicinal use. Eligible Virginia residents can legally consume, grow, and possess marijuana. Lawmakers have a 2024 deadline to create the Virginia Cannabis Control Authority to regulate and sell marijuana.

Virginia employers still have the power to implement drug testing policies preventing their staff from using marijuana. Many Virginia employers are government contractors which do business with the Federal Government, where marijuana is still illegal, and are subject to the Federal Acquisition Regulation Drug Free Workplace mandate. This mandate is outlined in 48 CFR 52.223-6/FAR 23.506.

Virginia employers also should be mindful of the intersection between an employee’s medicinal use of marijuana for treatment of a disability, and any drug policies the employer has. When a medical issue comes up in the workplace, employers should understand the applicable rules and laws that apply to ensure that any HR actions are legal and fair. Employers with 15 or more employees are subject to the federal Americans with Disabilities Act, and Virginia employers with less than 15 employees are subject to the Virginia Human Rights Act, which was amended on July 1, 2021, to preclude discrimination on the basis of disability.

Virginia employers who need assistance with any of the following should contact Lipp Law:

-Drug policies

-Employee Handbooks

-Legal advice regarding HR and employment issues in the workplace

-Disability/Americans with Disabilities Act Accommodations

See our next article about 3 Musts for Employee Terminations.