High Times in Virginia: What Does the Changing Marijuana Landscape Mean for Employers and Employees?

On November 16, 2020, Governor Ralph Northam issued a press release stating that he would introduce and support legislation legalizing marijuana in the Commonwealth of Virginia. Northam said:

 

It’s time to legalize marijuana in Virginia. Our Commonwealth has an opportunity to be the first state in the South to take this step, and we will lead with a focus on equity, public health, and public safety. I look forward to working with the General Assembly to get this right.

 

Northam’s push for legalization comes on the heels of new marijuana laws that went into effect on July 1, 2020. In addition to decriminalizing simple possession of marijuana in the Commonwealth, the new laws prohibit employers and educational institutions from requiring an applicant to disclose information concerning any arrest, criminal charge, or conviction for simple marijuana possession. While Virginia’s new “Ban the Box” law does not have a private right of action, employers can be subject to a Class 1 misdemeanor for each violation.

 

The potential legalization of marijuana in Virginia further complicates the unsettled employment law landscape. Employers are already reviewing and revising their job application and hiring practices to ensure that they are not asking applicants to disclose arrests, criminal charges and/or convictions for simple marijuana possession. Legalization could require employers to shift their risk management inquiries beyond the hiring and application process. Consider the following hypothetical:

 

Smokey works at Acme Supermarket. During his breaks, Smokey likes to go out to his car with his friend and coworker Craig, and smoke marijuana. Acme Supermarket’s employee handbook clearly states that it is a drug, alcohol and tobacco free workplace. Although Smokey and Craig smoke marijuana during their lunch break and at various times during the day, neither believes that he is intoxicated.

 

Employers may certainly prohibit employees from using alcohol or other intoxicants like marijuana while on the job and may also ban such substances from being brought into the workplace. However, legalization may create more gray areas. What if Smokey has congenital glaucoma and uses marijuana to keep his eye pressure down? Might he have a claim under the Americans with Disabilities Act? Marijuana is still illegal under federal law and, as such, the ADA does not protect illegal drug use. Some states like the Commonwealth of Massachusetts have medical marijuana laws which state that patients cannot be denied any right or privilege because of their medical marijuana use. Massachusetts’ disability laws give employees the right to reasonable accommodations.

 

Legalization could also lead to more discrimination claims by employees. Smokey and Craig are African American. What if their manager constantly accuses them of being high but says nothing about their co-worker, Jeff Spicoli, coming to work smelling like he has been doing crowd control at a Phish concert? Smokey and Craig might certainly have a discrimination claim under the Virginia Values Act if they wrongfully suffer adverse employment actions while Spicoli is allowed to keep smoking.

 

If anything is certain, Virginia’s 2021 legislative session might be just as impactful as 2020.