Virginia Legalizes Recreational Pot, But Questions Remain

By:  M. Jarrad Wright

The Old Dominion now has the “honor” of being the first state in the South and the sixteenth state in the nation to legalize marijuana.  With only hours to go before the end of this year’s legislative session, the State Senate and House of Delegates struck a compromise and passed a bill that will legalize marijuana for adult recreational use and retail sales in 2024. The vote occurred on a party line basis without any Republican support.  Democratic Governor Ralph Northam has been supporting legalization efforts, and there is little doubt that he will sign the legislation into law.

Details of the New Law
The new Virginia law will make possession of up to an ounce of marijuana legal when sales are slated to begin in 2024.  The bill also will allow home cultivation of four plants for each household.  Revenue generated through the sale of marijuana is designated for pre-K education and public health initiatives in the state.

Significantly, the legislation includes a clause requiring a second vote in the General Assembly next year to approve the requirements for regulating marijuana sales, but that procedural hurdle will not impact the timeline for legalization.  With the General Assembly up for election this November, the task of finalizing the regulatory framework, therefore, has been left to a General Assembly whose configuration in terms of legislators and party affiliation is as yet unknown.  That especially is the case since the fallout from the General Assembly’s legalization of recreational marijuana use and sales is likely to impact some key races around the Commonwealth, as many Republican legislators in Richmond argued that the legalization bill was rushed, while many Democrats argued that the bill does not go far enough.

Impact on Employers
From an employer’s perspective, the status quo is maintained for the immediate future.  Looking ahead, however, there remain significant business questions that have not been addressed, including how employers should conduct drug testing given that recreational marijuana use will now be legal and potentially prevalent.  Employers, therefore, are likely to be facing a number of challenges in maintaining drug free workplaces.

Assessing with any assurance the practical impact upon employers of the legislation will need to await future developments. Virginia’s laws regarding marijuana, as well as those in most of the country, continue to be in flux, and employers need to keep themselves apprised of any changes in the legal landscape.  Accordingly, we shall continue to update you as Virginia moves forward in establishing the regulatory framework for the sale of recreational marijuana.

Potential Concerns
Of special concern is whether the General Assembly may seek to provide legal protection to those persons who legally use marijuana.  Other states have done so, and prohibit an employer from taking an adverse job action against an employee simply because the individual is legally using pot outside the workplace.  Should Virginia move in this direction, the impact on employers is clear.

In short, this year’s General Assembly action to legalize recreational pot clearly is not the end of the story.  Stay tuned.