As more employees can legally turn to marijuana to treat their medical conditions, employers are finding themselves examining their employee policies regarding workplace safety and mandated disability-accommodations.
More and more states are decriminalizing marijuana for recreational purposes, and while it remains illegal under federal law, local legalization brings into play questions about how business owners will address marijuana in the workplace. Many of those issues arise around how to handle the use of medical marijuana.
Medical Marijuana in Virginia
On July 1, 2020, possession of authorized medical cannabis products by people who are registered to participate in the state's program became legal; in short cannabis laws in Virginia now allow residents to follow a process for registration and purchase marijuana for medical use.
There are still a lot of questions around this; under Virginia marijuana laws, what does medical marijuana treat; is this only for oils; do doctors write prescriptions for medical cannabis?
What does medical marijuana treat? It’s been reported as beneficial for several conditions, some common ones being:
The use is being increasingly explored in the medical context, so it’s likely that cannabis will continue to be a treatment alternative for a variety of medical problems or issues.
Is this only for oils and creams? No, in Virginia medical marijuana is available in most forms you can think of: tinctures, oils, creams, lozenges, lollipops, inhalation products, flower form, sprays, capsules, gummies, gels and patches to name a few. That means edibles are allowed and available for medical use.
Will doctors write prescriptions for medical marijuana? No, doctors in the U.S. can’t “prescribe'' medical cannabis, but they can recommend it. Virginia practitioners issue written certifications as part of the registration process. Once an individual is approved for Virginia’s Medical Cannabis Program they are free to legally purchase products from a dispensary.
Human Resources Concerns for Medical Marijuana
There are a lot of HR concerns for medical marijuana, and it’s best for business owners to address them now before they get caught off guard and find themselves in a dispute with an employee.
Not only did the law allow medical marijuana, it decriminalized possession a small amounts of marijuana, and prohibits employers from requiring job applicants to disclose any information regarding an arrest, criminal charge, or conviction for simple possession of marijuana. It also gives a job applicant the right to refuse to answer any questions regarding any such arrest, conviction or criminal charge. For starters, even outside of the medical marijuana scope, businesses need to review their job applications, interview questions and hiring practices to avoid being subject to criminal penalties for willful violation of the law.
Limited employee protections have been put in place under the Virginia law as well. No employer can discharge, discriminate against or discipline an employee for their lawful use of cannabis oil pursuant to a valid certification.
However, there are still situations where action can be taken against an employee for the use marijuana in the workplace, namely if it causes work impairment during working hours or requires an employer to be in violation of federal law or would result in the loss of a federal contract or funding.
Marijuana and the ADA
Now that medical marijuana use is allowed in Virginia the question that’s commonly asked is “Do employers need to comply with the Americans With Disabilities Act (ADA) and provide employees accommodations around cannabis use?”
The answer, as far as the ADA goes, is no. Since marijuana is still federally illegal, it’s considered a Schedule I controlled substance, it is not protected under the ADA, and therefore the use of medical marijuana isn’t something that Virginia businesses need to provide an accommodation for under the ADA.
However, as noted above this does not mean that Virginia employees aren’t provided some protection for use of medical marijuana. It’s just done under state law as opposed to the federal ADA requirements. Businesses need to carefully consider the laws that are in place here and how they will handle a situation where an employee has a medical marijuana card in Virginia. Most people who qualify for a medical marijuana card also qualify for protection from consequences of a failed employer drug test. There are some exceptions here, mainly around federal employees and contractors and employees working in the safety, defense and transportation sectors.
Additionally, the Virginia law does not prevent workplace drug testing. Employers are still able to perform drug tests on employees without restriction, provided they comply with any laws providing protections around that, namely not having discriminatory practices in place around testing policies. Virginia businesses will need to understand that a positive test from an employee with a medical marijuana card will have to be handled differently than a positive test from an employee without one. Provided the medical use doesn’t lead to work impairment or inability to perform the job an employee with a medical marijuana card can’t be disciplined for failing a workplace mandated drug test.
Keep in mind that an employee having a medical marijuana card does not give an employee free reign to use cannabis while at work. The law does not prevent businesses from enforcing a drug-free policy, and even with a medical marijuana card, employees can just use medical marijuana in the workplace as they see fit. Businesses will still have some discretion here if the ability to do the job is impacted.
Adult use of recreational marijuana will soon be legal in Virginia as well, and adults are already allowed to grow and possess marijuana within the limits of the law. The Adult-Use law do not give employees an exception to workplace policies around drug testing like a medical marijuana card does. An employee without a medical marijuana card can still be subject to discipline for violation of any company policy around drug use.
Business owners would be wise to adopt an employee policy that addresses marijuana use, medical marijuana use, the ADA and how situations involving marijuana will be addressed. Just because the laws around cannabis use have been relaxed doesn’t mean that there can be no professional repercussions for use. The issue small businesses are running into is they don’t know what their rights are when it comes to discipline in the workplace now that employees have additional rights regarding the use of cannabis.
Have questions about employees and medical marijuana or want help drafting policies to address those situations? Contact us for a free consultation.