By: Jarrad Wright
Virginia is on the verge of making history and becoming the first state in the South to legalize and regulate recreational marijuana. Last year the General Assembly decriminalized marijuana by eliminating criminal sentences and replacing them with small fines. Now, on February 2, 2021, the House, in an 55-42 vote, passed HB2312 which sets forth a regulatory framework for legal sales of recreational marijuana. A few hours later, the State Senate bill later that day passed SB1406 in a 23-15 vote.
The two bills are similar in that they set forth a regulatory authority to handle the taxing and sale of recreational marijuana, but there are differences between the two bills that will require reconciliation between the two chambers. For example, the Senate version allows local governments to opt-out of sales and requires another vote by the General Assembly to finalize the regulatory process. Accordingly, the reconciliation process between the competing bills is ongoing, and Governor Northam has indicated that he will likely sign the final bill into law.
Although the form of the regulatory scheme for marijuana sales is becoming in focus, Virginia employers have many unanswered questions. For example, both bills restrict the ability for anyone to obtain criminal records related to marijuana checks and this will impact background checks run by employers in the hiring process.
Another important question is whether employers can maintain their current drug testing policies and, relatedly, whether employers will be able to fire employees for positive marijuana tests. The current House and Senate bills do not address these issues directly. Under current law employers can maintain drug testing policies for marijuana, and current Virginia law generally allows employers latitude in setting policies that allow them to test and to fire employees for legal drug use outside of working hours. The only statutory exception is that public employers are prohibited from firing employees for tobacco use outside of work hours. The current bills in the General Assembly does not change this general framework, and unless the General Assembly addresses these issues during the reconciliation process, presumably Virginia employers will still be allowed to have policies for drug testing and policies allowing them to fire employees for positive marijuana tests.
However, the law is developing quickly, and there is a distinct possibility that the General Assembly addresses these issues in reconciliation or in upcoming bills. Moreover, if not addressed by the General Assembly this issue is likely to be litigated as it has been in other states such as Colorado. In that state, courts recognized employers’ rights to maintain drug testing. As time goes on and because the General Assembly is setting forth a public policy to decriminalize and to raise tax revenue for pre-kindergarden through marijuana sales, a court in theory could hold the opposite view.
Ultimately, Virginia’s law concerning marijuana usage is rapidly changing and employers need to be aware that there are likely to be many changes in the upcoming year. While the General Assembly is working on the current legislation, elections will occur in November, and the scope and breadth of the changes are likely to impact some races in the state. Moreover, just as other states have had to make adjustments as they have legalized and regulated marijuana, Virginia is likely to make adjustments for the foreseeable future to address unforeseen issues. Virginia employers, especially those working with federal contracts or those with offices in multiple states, should continue to monitor the changing regulatory environment to make sure their policies stay compliant.