Virginia’s Governor signed a bill making it the first state in the South to legalize small amounts of marijuana for personal use starting on July 1, 2021. It is projected to take 3 years to be fully enacted, assuming that the legislature is reenacted next year, and includes plans for retail sales to begin on January 1, 2024.

What Changed?

The new legislation allows adults in Virginia over 21 years of age to possess up to an ounce of marijuana and to gift up to an ounce of marijuana to another adult (over 21). Households are limited to cultivating no more than four marijuana plants and must ensure these plants are not accessible to children. 

Legalization allows possession; however, it is not to be consumed in public places and there are still penalties. Possession of more than one ounce but less than one pound of marijuana will be subject to a civil penalty of up to $25. Possession of more than one pound of marijuana will be subject to a felony punishable by up to ten years in jail and up to $250,000. Consumption in a public place is subject to a civil penalty of up to $25 for the first offense and additional penalties for additional violations up to a Class 4 misdemeanor. 

What does this mean for the workplace? 

Managing the effects on employee function and risk depends on job functions, the business, and company policies. It is critical that companies take a look at explicit workplace policies addressing factors such as maintaining a drug-free workplace, highly regulated jobs and industries (think high physical risks and federal/government contracting) and accommodating certified medical marijuana cardholders. Drug-free workplaces will most likely keep drug and paraphernalia free policies.  

How do we proceed within gray areas?

Recreational use will be legal to an extent. Virginia is still an at-will employment state and employers may still require pre-employment and random drug testing as well as after an accident, or if the employee is suspected of being impaired at work. Employers may question and take action if an employee is under the influence on the job based on job performance or other reasonable suspicions. 

Regulated employment is not protected under the new laws and applies to safety-sensitive or federally regulated contracts or contractors. Employers may drug test employees in certain regulated positions whether or not an employee is showing signs of impairment. If an employer is required to test certain employees by federal law or as a condition of employment, the employee test results must be evaluated on an individual, case-by-case basis, and may result in rescinded offers or termination. 

In any case, employees who hold a certified medical marijuana card must disclose their medical marijuana authorization status before or when they are presented with a drug test. 

Medical Marijuana Cards have been legal in Virginia since 2015. The new legislation provides more employment protections for medical marijuana cardholders; however, the law does not protect against adverse employment action for use or possession of cannabis oil during work hours, any act that could cause an employer to be in violation of the federal law or that would result in the loss of a federal contract or federal funding, and any defense industrial base sector employers decision to hire or retain any applicant or employee who tests positive for THC in excess of specified amounts. 

As with any new legislation, wording, context, and interpretation will keep many of us in a wait and see state. Proceeding with caution and due diligence is a good place to start! 


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