What does the legalization of recreational marijuana use mean for Virginia employers

April 18, 2021

Possession of marijuana will be legal in Virginia effective July 1, with certain restrictions.

Employers have begun to question how this new state law that legalizes recreational marijuana possession and presumably consumption will impact workplaces in Virginia, if at all.

Companies are considering whether the law permits employees to come to work under the influence of marijuana, if businesses can perform drug tests on workers and how the new law affects the requirement to provide reasonable accommodation to employees who are using marijuana for medical purposes.

Can companies fire or penalize a worker for using recreational marijuana in their free time?

The new law allows Virginians over the age of 21 to possess up to an ounce of marijuana and grow up to four cannabis plants at home starting on July 1.

The law only changes Virginia’s stance on the legality of marijuana, but it doesn’t change federal law. Marijuana (cannabis and tetrahydrocannabinol, or THC, the active ingredient in marijuana) remains a Schedule 1 drug along with heroin and LSD under the federal Controlled Substances Act.

Regardless of whether marijuana is legal, the new law does not change the employer’s right to mandate that employees work without being impaired by marijuana, just as companies can reject an employee coming to work under the influence of alcohol.

Companies with 15 or more employees must provide reasonable accommodations to a worker with a disability under the Americans with Disabilities Act.

Current illegal drug users are exempt from the law’s coverage. Therefore, if an employee is actively using marijuana and requests a reasonable accommodation to use marijuana for a medical condition, that worker no longer has rights under the ADA because the employee is an active illegal drug user under federal law.

A person recovering from illegal drug use is covered by the ADA, however, permitting a recovering addict to use the illegal drug would not be a reasonable accommodation. There is no scenario under which an employer must permit an employee to use marijuana as a reasonable accommodation under current federal law.

Many employers conduct drug tests either pre-employment or during employment, including random tests or following an accident.

Employers will need to consider how to address applicants or employees who test positive for the presence of THC.

Marijuana metabolizes differently than other substances, so it will be difficult for employers to determine if an individual is currently under the influence of marijuana.

For example, the presence of exposure to cocaine is eliminated in a single day after use, according to the Mayo Clinic Laboratories. However, the presence of the chemical that indicates exposure to THC can become evident in a urine drug test within three days after a single use, and up to approximately 30 days in heavy chronic users, the Mayo Clinic Laboratories said.

This means that a drug test may not be a fair indicator of whether someone is currently under the influence of marijuana.

Employers should review internal policies and determine how to address the presence of THC in an applicant or employee through a drug test.

Employers could legally establish a policy that it will deny employment to anyone using an illegal substance as defined in the Controlled Substance Act.

However, the company also needs to consider that it may lose talented employees who are legally using marijuana in accordance with Virginia law.

Furthermore, the presence of marijuana remains illegal for anyone under the age of 21, so employers who hire individuals under that age should also consider if they plan to have a separate policy for illegal pot use under Virginia law.

The policy decision for each employer will depend on that company’s needs. Employees in high-risk jobs, such as manufacturing, construction, transportation, public safety, health care and similar professions, may find it necessary to implement stricter drug-free policies for safety and risk reasons.

Under the bill itself, for example, “Any person who possesses or consumes marijuana or marijuana products while operating a school bus and transporting children is guilty of a Class 1 misdemeanor.”

Employers can also establish policy that employees are not permitted to possess marijuana on any employer premises.

NOTE: This column focuses on the federal law implications of the new state law. Next week, Karen Michael will discuss the state law implications for employers.

Click here to see what Virginia’s new pot law means for employers