What Does the Legalization of Marijuana Mean for Employers?

On July 1, 2021, Virginia became the first southern state to legalize adult use of marijuana. Virginia’s new marijuana law, however, has left employers with more questions than answers. Further complicating matters is the fact that marijuana prohibition continues at the federal level.

Because Virginia decriminalized the simple possession of marijuana in 2020, employers can no longer require job applicants to disclose information regarding arrests, charges or convictions for simple possession of marijuana. Employers can still ask about other criminal convictions; however, they must state that the conviction is not an automatic disqualification to employment.

As of 2021, nothing prohibits an employer from testing for marijuana as a condition of employment. Even in the absence of a written policy, employers have wide discretion to require testing whenever it deems it appropriate (pre-employment, random, after an accident, etc.). Further, employers can take disciplinary action against employees for off-duty, lawful marijuana use and possession. This is consistent with Virginia’s “at will” employment relationship meaning that an employment term extends for an indefinite period and may be terminated by either party for any reason or no reason at all, upon reasonable notice.

Virginia’s new marijuana law does provide limited protection for some people. Employers are prohibited from discharging, disciplining or discriminating against employees who have a valid written certification to use cannabis oil for medical reasons. However, an employer can prohibit those employees from working impaired and can prohibit use and possession while at work. In contrast, recreational users have no protection at all. The disparity that is created by those who possess a valid certification and those who can now legally grow up to four marijuana plants at home for personal use has put employers in the precarious position of balancing what employees can do in their free time versus the effect marijuana may have on their job performance.

Virginia’s new law has led some employers to reconsider their existing drug policies. While some have continued a strict zero tolerance policy, others have stopped testing for marijuana altogether. In situations where safety might be compromised (manufacturing, heavy equipment use, transportation-related jobs, etc.), some employers have chosen to continue with post-accident testing for marijuana, especially with hourly employees. Other employers have eliminated pre-employment testing for marijuana but have maintained a policy prohibiting possession or use of marijuana while at work. A growing trend is for employers to treat marijuana use the same as alcohol use. Just as you cannot consume alcohol at work or come to work intoxicated, you cannot use marijuana at work or come to work under the influence of marijuana. What Virginia’s new law does not do is to require an employer to do anything that would result in the violation of a federal law or would result in an employer losing a federal contract. The Drug-Free Workplace Act (DFWPA) requires certain federal contractors and federal grant recipients to maintain a drug-free workplace. Further, the Department of Transportation (DOT) regulations governing drug testing and use remain in effect despite states’ laws.

A stumbling block for employers is how to determine whether an employee is impaired. Unlike alcohol, there is no litmus test for THC, the psychoactive chemical in marijuana. While cannabis testing detects the presence of marijuana, there is currently no test which can detect how long THC has been in the body. Its presence can date to days, weeks or even months earlier. It does not show whether an employee is currently impaired. A positive test result could be due to using marijuana while at work or it could be the result of the lawful use of marijuana days, weeks or months earlier. While the determination of employee impairment will no doubt be a challenge, it is important to remember that willful misconduct due to intoxication from marijuana use is still a viable defense to compensability. However, because a willful misconduct defense applies to the use of non-prescribed controlled substances, it may be difficult to defend cases in which an employee had a valid certification. Also important to remember is a termination for cause defense. If an employee violates an employer’s drug policy, that employee forfeits his or her right to compensation benefits like any other employee who loses employment benefits when discharged for cause.

At the present time, the focus for employers should be on safety. Employers should continue to require employees to come to work each day fit for duty. That means the use and possession of marijuana, as well as other drugs and alcohol, is prohibited while on the employer’s premises and while the employee is working. Employers should continue to take the position that employees are responsible for their conduct when not at work and that their failure to do so may result in termination or any other action which is in the employer’s best interest. While Virginia’s new marijuana law will present challenges to employers, employers can still insist that they have a drug-free workplace.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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