Virginia State Drug Testing Laws

Medical
Marijuana Law:

Recreational
Marijuana Law:

No Broad Laws
Legalizing Marijuana*:

Employer Concerns – Significant to Review

Significant

  • Only low-THC medical cannabis extractions (oils, tinctures, creams, gels, capsules, patches, and more, but not cannabis flower) are allowed and a qualifying individual has an affirmative defense for possession, however it does not prevent arrest, charges, and prosecution.
    • Qualified persons have an affirmative defense for possession no greater than 10 milligrams of CBD or THC-A oil, if it meets the state’s requirement of at least 15% CBD and no more than 5% THC (marijuana-derived), and they also have in their possession a written certification (their qualified medical practitioner’s recommendation form).
    • As the new CBD-related laws (HB 1251 and SB 1557) fully take effect in 2019, patients will have access to products beyond just oils and, similar to compounding pharmacies, there will be access to capsules, topicals, lozenges, lollipops, and suppositories in dosages with up to 10 milligrams of THC.
  • CBD-related laws signed by the Governor in 2020:
    • A person possessing CBD with a high enough THC factor that it qualifies for a positive test under an employer’s program, shall not be prosecuted for simple possession of marijuana.
    • Under a decriminalization law:
      • Employers and educational institutions are prohibited from asking employment applicants to disclose information related to arrest, criminal charge or conviction of marijuana. Further, these criminal histories will not be reported to the Central Criminal Records Exchange. This is inconsistent with Federal rules for contractors or grantees with Federal contracts in excess of $100,000.00.
      • However, if a violation occurs while operating a commercial motor vehicle, it will be reported to the Department of Motor Vehicles and shall be included on the individual’s driving record.
  • Virginia has a voluntary drug testing law that, although not required, if an employer elects to comply, they will qualify for a workers’ compensation premium discount. It requires the employer follow drug testing policy and program specifications issued by the insurer.
  • The mining industry has drug testing requirements in Virginia.
  • Virginia has unemployment and workers’ compensation voluntary laws that, although not required, with compliance, an employer has greater latitude to deny claims.

Testing

Hiring/Termination

  • See Other Impacting Laws below.

Discipline

Use/Possession

  • Possessing, consuming, or selling cannabis flower, hashish or cannabis extracts is illegal and patients may assert affirmative defense only for possession.
  • Consuming cannabis products in public places is illegal.
  • Only up to a dose of 10 milligrams of low-THC (at least 15% CBD and no more than 5% THC) medical cannabis is permitted.
  • When HB 1251 is effective, any formulation of processed cannabis plant extract, but not whole plant cannabis, is permitted. These available products will be similar to those available at compounding pharmacies like capsules, topicals, lozenges, lollipops, and suppositories in up to 10 milligrams of THC.
  • Smoking anywhere is prohibited.
  • When driving, medical cannabis products must be in sealed containers away from driver and passengers in motor vehicles.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • An employee is disqualified for unemployment compensation if she or he was discharged for misconduct, including a confirmed positive drug test for a non-prescribed controlled substance (which would include marijuana).
  • An employee is disqualified for workers’ compensation if at the time of the injury, she or he tests positive for a non-prescribed controlled substance on a qualifying test.
  • Apply the Checklist of Impacting Issues for Employee Use of Marijuana  provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)
  • Virginia SB 1015 – CBD related
  • Virginia SB 972 – CBD related
  • Virginia HB 1251 – CBD related
  • Virginia SB 1557 – CBD related
  • Virginia Code Ann. 65.2-813.2 – Drug testing law
  • Virginia Code Ann. 60.2-618 (2)(b) – Unemployment related
  • Virginia Code Ann. 65.2-306 – Workers’ compensation related
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).