The new marijuana law passed by the General Assembly this year and signed by the governor leaves many open questions for employers.
Last week, I wrote about potential implications that federal laws may have on the new state law that legalizes recreational marijuana possession.
But employers also have to be concerned with how the new Virginia marijuana law in some ways conflicts with other state and federal laws.
For instance, employers will need to consider the implications of several state laws before terminating an employee who tests positive for marijuana use, including those who are using marijuana for a medical condition.
An employee could be terminated or denied an accommodation under the federal Americans with Disabilities Act,
But it might not be legal to do so under changes state lawmakers made this year to the Virginia Human Rights Act, which was changed to include disability among protected characteristics. Effective July 1, the changes to that law require companies that employ five or more workers to provide reasonable accommodations to any otherwise qualified employee with a physical or mental impairment unless doing so creates an undue hardship.
If use of marijuana is legal under Virginia law, there is an outstanding question if a person currently using marijuana maintains coverage under the state law and therefore could be entitled to a reasonable accommodation.
Under federal law, however, current illegal drug use exempts an individual from coverage under the Americans with Disabilities Act. That’s because marijuana is illegal under federal law.
Employers also will have to grapple with how to address an employee who tests positive for marijuana during an employer’s drug screening.
Virginia lawmakers partially weighed into this question during the 2021 session when it passed a law on disciplining of an employee using cannabis oil for medicinal purposes.
That cannabis oil law, which also takes effect on July 1, states, “No employer shall discharge, discipline, or discriminate 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 pursuant” to the existing certification for use of cannabis oil for treatment described in the cannabis oil law.
Cannabis oil is narrowly defined in that law, and expressly excludes certain industrial hemp “that is grown, dealt, or processed in compliance with state or federal law, unless it has been acquired and formulated with cannabis plant extract by a pharmaceutical processor.”
This will be extremely confusing for employers, making it difficult for employers to know how to comply with the new state law that legalizes recreational marijuana possession.
Under the cannabis oil law, for instance, employers are not restricted from taking adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours. Since marijuana can appear in a urine test three to 30 days after use, employers will struggle to determine if an employee is impaired by use of marijuana.
Employers also are not required 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 “require any defense industrial base sector employer or prospective employer, as defined by the U.S. Cybersecurity and Infrastructure Security Agency, to hire or retain any applicant or employee who tests positive for tetrahydrocannabinol (THC) in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.”
These narrowly tailored restrictions leave Virginia employers with more questions than answers.
Making this more complicated, lawmakers included in the Virginia Human Rights Act among undue hardship considerations for employers, the “safety and health considerations of the person with a disability, other employees, and the public.”
So the question remains whether an employee working as a forklift driver can be prohibited from ever testing positive for marijuana using safety considerations.
Broderick C. Dunn, a partner at the Cook Craig & Francuzenko law firm, said the new law mandates that “employers cannot discipline an employee for using cannabis oil that is prescribed by a physician to treat a legitimate health concern.”
Employers can terminate impaired workers, he said, but acknowledged how difficult it will be to prove that the employee is impaired as a result of the marijuana use.
Companies also can ban the use of marijuana if it will endanger federal funding or a contract, he said.
“The complexity around the legalization of marijuana and the subsequent laws passed by the General Assembly are just the beginning as we move toward legalization, and employers should buckle up and stay tuned,” Dunn said.
There are many outstanding questions that center around these multiple laws, and there are few answers at this time for employers.