Senate Bill 1406 goes into effect July 1, 2021, legalizing recreational marijuana in Virginia. It will be legal for adults over 21 to possess up to an ounce of marijuana and cultivate up to four marijuana plants. Treating marijuana more like alcohol than a Schedule I controlled substance will affect Virginia workplaces, from hiring to termination and everything in between. This article looks at what has changed, what probably won’t, and what may be next on the horizon.
Under S.B. 1406, employers can still drug test applicants and refuse to hire those who test positive for marijuana. But there could be an exception for medical marijuana users. Under House Bill 1862, also effective July 1, 2021, employees cannot be discriminated against for marijuana use if they have a valid prescription. Surprisingly, H.B 1862 refers only to discrimination against “employees” and not applicants. As such, it is unclear whether Virginia employers can refuse to hire applicants because they are prescribed marijuana.
Employers’ ability to refuse to hire applicants likely will change, even if applicants only use marijuana recreationally. An emerging trend in other states bans pre-employment marijuana testing of employees altogether. For example, New York and Nevada recently passed laws preventing employers from refusing to hire an employee who fails a pre-employment marijuana drug test, even if that employee only uses marijuana recreationally. California is considering similar legislation.
Following the example of these states is not a stretch. Last year, Virginia banned asking applicants about criminal history, including marijuana-related charges. Further, S.B. 1406 will seal and expunge past misdemeanor marijuana convictions automatically.
Even though Virginia has not yet banned pre-employment marijuana testing, legalizing recreational marijuana may indirectly have a similar effect. Employers risk losing quality applicants by testing for marijuana, particularly as recreational use becomes more frequent due to legalization across the country.
Despite this national trend, one thing unlikely to change is employers’ continuing duty to drug test applicants for certain positions required by federal law or for high safety risk positions. Mandatory pre-employment testing for marijuana will continue to apply to defense, nuclear, healthcare, emergency medical service, and transportation industries.
Requests for a Reasonable Accommodation
Neither S.B. 1406 nor H.B. 1862 go so far as to require that employers accommodate marijuana use. However, the Virginia Human Rights Act will be amended by House Bill 1848 to include disability discrimination. This law is also effective July 1, 2021 and will require employers to engage in an interactive process and accommodate employees with disabilities, which could include medical marijuana users.
Even if accommodation is required, it is unclear what it would look like. Employers certainly will not be required to allow employees to work under the influence of marijuana. Allowing employees to test positive for marijuana on random drug screening likely will count as reasonable. But functionally this would look no different than what is required of employers marijuana under H.B. 1862, which prevents employers from discriminating against employees prescribed marijuana.
The question of whether accommodation under the Americans with Disabilities Act (ADA) extends to medical marijuana use is being asked in federal court. So far, the answer is no. For example, in March 2021, the District Court of Connecticut held that the ADA cannot be read to affirmatively require an employer to accommodate the use of a substance deemed illegal under federal law. Eccleston v. City of Waterbury, 2021 WL 1090754, at *8 (D. Conn. Mar. 22, 2021). Marijuana is still a Schedule I illegal substance under the Controlled Substances Act.
Post-Incident, Reasonable Suspicion, and Random Drug Testing
Even though out-of-office recreational use will be legal, employers are never required to tolerate employees being intoxicated or possessing marijuana at work. H.B. 1862 does not “restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours.” The problem will be proving whether an employee was intoxicated while at work, as current drug testing technology is imprecise.
Unlike testing blood alcohol content, marijuana tests won’t help determine if a person was intoxicated when an accident occurred. Marijuana tests often report positive results if a person has used marijuana in the last 30 days. Meaning, post-accident or suspicion-based testing may not be an effective way of enforcing a policy that allows employees to use marijuana outside of work but not on the clock.
But requiring post-incident or suspicion-based drug testing may still be a good idea. At least if an employer drug tests after an accident or when an employee looks intoxicated, there is some additional evidence that employees are not just using marijuana in their free time.
Employers also may wish to random drug test some employees. Random drug testing can still be useful, or even required, for some positions. The Federal Motor Carrier Act, for example, still requires transportation employees to undergo random drug testing, which preempts Virginia law.
Adverse Employment Actions and Termination
Employees in Virginia are assumed to be employed at will, meaning they can be terminated at any time and for any reason that is not discriminatory. H.B. 1862 adds medical marijuana use to the Commonwealth’s growing list of discriminatory reasons an employee cannot be terminated. Starting July 1, 2021, “[n]o 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.”
Despite this new statutory protection for workers, employers can still terminate an employee with a valid marijuana prescription if one of three exceptions apply. As discussed above, employees who are prescribed marijuana can still be terminated if they possess marijuana at work or are intoxicated on the job.
H.B. 1862 also carves out those employees whose positions are regulated under federal law. It states that “nothing in this section stall… require an employer 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.”
Similarly, H.B. 1862 explicitly states that “any defense industrial base sector employer or prospective employer” may still refuse “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.”
Even though employees may now allege workplace discrimination based on being prescribed medical marijuana under state law, federal protection may still be a long way off. A handful of federal district courts across the country have recently concluded that the ADA does not protect against discrimination based on medical marijuana use, even where use is state-authorized and physician-supervised. In arriving at this conclusion, federal courts rely on the fact that marijuana remains illegal under federal law. Until this changes, Virginia employees prescribed medical marijuana will only be protected under state law.
When considering the impact Virginia’s new laws will have on the workplace, employers should consult with legal counsel when deciding on a drug testing policy or before terminating an employee based on marijuana use.