As Virginia Turns Red, Changes Are in Store

By: M. Jarrad Wright

Virginia’s recent governor and House of Delegates elections produced a significant victory for the Republican party as Governor-Elect Glenn Youngkin defeated former Governor Terry McAuliffe.  Equally important, Republicans are poised to regain control of the Virginia House of Delegates by a two-seat margin.  Those races recently were certified for the Republican candidates, but the fat lady still has not sung, as two Democratic Virginia delegates have requested recounts in their districts.

While that process is underway, divided government will be the norm in 2022 as the Democrats have a small majority in the State Senate, which was not up for election this year.  With the dust settling, the question for Virginia businesses, employees, and citizens is what happens next?

Uncertain Consequences

Elections have consequences.  At this moment, however, no one knows exactly what those consequences will be.  With divided government, lawmakers are going to have to work across party lines to push forward any legislation.  This could have a significant impact on the workings of next year’s General Assembly session.

For example, Virginia’s new law allowing for the sale of recreational marijuana which was enacted this year includes a clause requiring a second vote in the General Assembly in 2022 for the regulatory requirements to be put into effect.  While this vote would not roll back the legalization of marijuana, the task of finalizing the regulatory framework for sales will be left to the next year’s General Assembly.  It still is early, but news reports indicate that some Republican house members do not want to derail marijuana sales.  Rather, those members want to speed up sales that are currently scheduled to begin in January 2024 to tamper down illegal sales of pot.

That said, it is unknown that changes to the regulatory structure will occur, especially considering that current Attorney General Mark Herring was working to setup the Virginia Cannabis Control Authority.  That job will now fall to a new Attorney General, Republican Jason Miyares, with input from the newly constituted General Assembly.  All of this simply heightens the uncertainty as to whether and when Virginians can expect to legally purchase marijuana for recreational use – with all the attendant issues for employers in attempting to maintain a drug free workplace.

Revisiting Employment and Business Laws?

Immediately following the elections, Republican leaders stated that their top priorities involved schools, and they did not give specifics as to which business and employment related laws that they intend to alter.  Under the prior Democratic control of state government, Virginia dramatically changed its employment law and business statutes making them employee friendly.  For example, the applicability of covenants not to compete recently was reduced by prohibiting lower paid employees from being subject to restrictions on subsequent employment.  This, and many other recent changes to the law are likely to be revisited in the next year, assuming that Republicans maintain control of the House following the recounts and can find sufficient Democratic senators to cross the aisle.

Bottom Line

Given the present state of flux in the General Assembly, Virginia employers need to be attuned to developments in the 2022 legislative session, which begins in mid-January.  Also, now is the time to contact your state representative or senator to make your views known as to proposed changes in the law that would return Virginia to a more business friendly environment.  Time is of the essence.  Don’t wait until the General Assembly convenes on January 12, 2022.