Virginia - Considerations for Marijuana in the Workplace

Medical
Marijuana Law:

Recreational
Marijuana Law:

No Broad Laws
Legalizing Marijuana*:

*Marijuana is either totally illegal, or there may be laws decriminalizing possession, or use of marijuana, or, the state may have a CBD law legalizing THC at a level constituting marijuana-derived CBD.

Employer Concerns – Significant to Review

  • To qualify as medical marijuana, the product must contain no more than 10 milligrams of THC per dose, be produced by a pharmaceutical processor, registered with the Board of Pharmacy, compliance with testing requirements and composed of cannabis oil or botanical cannabis. Products permitted under law may be in any formulation, including inhalable, edible, and topical preparations.
  • There is no list of specific conditions allowing use of marijuana in Virginia. As per (VA SB 6711. B.), “A practitioner in the course of his professional practice may issue a written certification for the use of cannabis products for treatment or to alleviate the symptoms of any diagnosed condition or disease determined by the practitioner to benefit from such use.”
  • Individuals receive written certification for use of cannabis products for treatment from a practitioner on a form by the state Board of Pharmacy.
  • Per (Virginia’s Code Ann 40.1-27.4 B.), “… employers shall not discharge, discipline, or discriminate against an employee for … lawful use of cannabis oil pursuant to a valid written certificate issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease…” However, employers are permitted to
    • restrict possession of and use of cannabis oil during work hours. Although this law stipulates “cannabis oil,” with the passage of VA SB 671 and its re-defining of “cannabis oil,” we are anticipating that the restriction in VA Code Ann 40.1-27. 4.B. also applies to “cannabis products” as defined in VA SB 671.
    • take adverse employment action for impairment caused by the use of cannabis oil. Although this law stipulates “cannabis oil,” with the passage of VA SB 671 and its re-defining of “cannabis oil,” we are anticipating that the restriction in VA Code Ann 40.1-27. 4.B. also applies to “cannabis products” as defined in VA SB 671.
  • Note that because the law states, “for the treatment … of the employee’s diagnosed condition or disease,” there may be disability obligations for the employer (refer to knowledgeable counsel).
  • 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.
    • 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

  • Employers should not take adverse action against a qualified medical marijuana patient who tests positive for marijuana unless they are impaired within work hours.

Use/Possession

  • Consuming cannabis products or offering products to another in public places is illegal.
  • Use is prohibited while driving or being a passenger in a motor vehicle being driven, on school grounds, while operating a school bus, in a vehicle transporting passengers for hire, or in a commercial vehicle.
  • When driving, medical cannabis products must be in sealed containers away from driver and passengers in motor vehicles.
  • Smoking anywhere is prohibited.

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 to Research 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 (“Code of Virginia 54.1-3408.3”) – Medical marijuana
  • Virginia’s HB2312 and SB 1406 – Adult use and legalization of marijuana
  • Virginia SB 671 – Medical marijuana related
  • Virginia Code Ann. 40.1-27.4 – CBD related
  • Virginia HB 1251 and SB 726 – CBD related
  • Virginia SB 1557 – CBD related
  • Virginia SB 972 – 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).

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