Legal Insider: Implications in Virginia on Employers and New Marijuana Law

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Virginia recently decriminalized many marijuana-related issues through legislation. As a result, the possession of limited amounts of marijuana will be legal in Virginia, effective July 1, 2021, with certain restrictions.

Many employers and employees have begun to question how this new state law will impact them. There are many questions to be answered. For instance, can employers perform drug tests on employees or fire them for using marijuana outside of work hours? This brief article will touch on the impact of the new Virginia marijuana law.

Federal Marijuana Law Remains the Same

It is critical to understand that the change in Virginia law does not affect the fact that marijuana usage remains illegal under federal law. For instance, if an employee holds a security clearance, they can quickly lose it (and their employment) for any marijuana usage (at work or at home) despite small amounts now being legal on the state level. Until Congress changes the Controlled Substances Act, marijuana remains a Schedule 1 drug (along with heroin and LSD) and a criminal offense.

Virginia Law Changes

The newly enacted law permits individuals in Virginia who are over the age of 21 to possess up to an ounce of marijuana and grow up to four cannabis plants at home. Previously, doing so was a criminal offense. Furthermore, adults who are caught with more than an ounce but less than a pound of marijuana will face a potential $25 fine. Lastly, any adults caught with more than a pound can be charged with a felony punishable by one to 10 years in prison and a fine of up to $250,000.

While sales of marijuana are illegal, the legislation permits gifting up to an ounce of the drug to any adult.

Employment Law Issues Remain with Marijuana Use in Virginia

In terms of employment law, the new law should lessen, but not end, many employer’s restrictions on employee off-hours use of marijuana. I eventually see a gradual lessening of drug testing over time for minor usage in non-critical or non-government security positions. There will be numerous exceptions to this, however. Furthermore, nothing in the new law changes the fact that employers can still enforce drug policies even though Virginia has legalized marijuana.

Breaking an employer’s policy may still result in termination. Additionally, many security clearance and safety-based occupations are subject to drug policies, which require employees to pass drug tests and can include employees in the security, construction, medical and government sectors, and others. There are many other exceptions in the legislation, 283 pages in length, which is included in the link above.

The new law also does not eliminate the ability of an employer to require that employees not be impaired by marijuana at work. Furthermore, employers could potentially establish policies stating that it will deny employment to anyone using an illegal substance under the Controlled Substance Act. Employers will also be able to establish policies that employees are not allowed to possess marijuana on employer property. Furthermore, use of marijuana is still illegal for those under the age of 21. Lastly, there may be some potential assistance for the reasonable accommodation of employees that need medical marijuana usage for medical conditions and who work for certain employers.

This is a new law, and it will take some time for employers and employees to fully sort out the full ramifications. For now, while certain amounts of marijuana usage are legal in Virginia, it doesn’t mean an employee may not be fired for using it. However, the new Virginia law will give some employers leeway to be less strict in their marijuana policies should they choose to do so.

Conclusion

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