Consistent with legislative trends, Virginia weighed in further on the nationwide marijuana debate by enacting two new comprehensive cannabis-related laws. The first prohibits discipline for employee’s medical use of cannabis oil. The second is an omnibus bill permitting all individuals over the age of 21 to lawfully possess recreational marijuana. All provisions go into effect on July 1, 2021.

Background

After years of silence in the marijuana debate, in 2020, Virginia decriminalized simple marijuana possession offenses and prohibited employers from requiring job applicants to disclose past charges for marijuana possession. In 2021, lawmakers extended protections to stop adverse employment actions against cannabis oil users and to legalize recreational marijuana.

Medical Use of Cannabis Oil

Cannabis oil users will have increased employment protections beginning July 1, 2021. New § 40.1-27.4 prohibits employers from discharging, disciplining, or discriminating against an employee for their lawful use of cannabis oil with a valid written certification issued by a doctor. These restrictions apply only to the medical use of cannabis oil, not medical marijuana.

The law explains that employers can still take adverse action against an employee for any work impairments caused by the use of cannabis oil and prohibit possession of cannabis oil during work hours. The scope of this exception is not yet known. Although cannabis oil was previously authorized by Virginia lawmakers to treat a medical condition, the new law provides no new guidance as to whether employers must allow an employee to use cannabis oil during work hours if offered by a doctor as a reasonable accommodation for an employee’s disability or if the use of cannabis oil during work hours is unreasonable per se.

Additionally, the law states that nothing in this provision requires employers to commit any act in violation of federal law or that would lead to the loss of a federal contract or federal funding. This may mean that federal contractors who must comply with drug-free workplace laws are exempt from this provision. The law also does not require any defense industrial base sector employer or prospective employer to hire or retain any applicant or employee who tests positive for THC in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.

Recreational Marijuana Legalization Includes Expanded Expungement

Governor Northam signed into law S.B. 1406 to allow adults over the age of 21 to possess one ounce of marijuana under Virginia law starting July 1, 2021. The legislation establishes the Virginia Cannabis Control Authority to legalize, tax, and regulate recreational marijuana use.

The new law also makes fundamental changes to expungement rules related to past marijuana convictions. Previously, the only offenses eligible for expungement were acquittals, certain dismissals, and charges formally not pursued by prosecutors. As a result of this new legislation, all misdemeanor violations are expunged and the Virginia State Police is directed to determine no later than July 1, 2025, which marijuana-related offenses will be automatically expunged from the state’s record. Felony marijuana charges are also implicated by the new law. Any person can petition to expunge a felony marijuana conviction, and, if successful, the conviction is permanently erased. An employer cannot then require an applicant to answer any question related to any arrest, criminal charge, conviction, or civil offense that has been expunged.

The law also limits the dissemination of information related to marijuana offenses. Private employers that are not subject to federal laws or regulations in the hiring process cannot require in any application, interview, or otherwise an applicant to disclose information when the record is not open for public inspection.

This law does not stop employers from prohibiting marijuana in the workplace.  But employers should consider how they want to message their expectations to their workforce considering the swirling — and often contradictory — information and messages regarding cannabis use and the workplace.

Connecticut has become the 19th state to legalize recreational marijuana use by adults.

Governor Ned Lamont signed the Act Concerning Responsible and Equitable Regulation of Adult-use Cannabis on June 22, 2021. Connecticut will permit individuals 21 years of age and older to possess and use recreational cannabis. Individuals cannot possess more than 1.5 ounces on their person or more than 5 ounces in a locked container in their home or in a locked glove box or trunk of a motor vehicle.

Provisions regarding lawful possession go into effect July 1, 2021, but the provisions affecting employers will take effect next year on July 1, 2022.

Provisions Affecting Employers

Under the new law:

  • Employers can maintain a drug-free workplace and implement policies prohibiting the possession, use, or other consumption of cannabis by an employee, subject to certain exceptions, including existing protections for qualified patients under the state’s medicinal marijuana law. Employers must put such policies in writing and make them available to employees and prospective employees.
  • Employers generally cannot discharge or take adverse action against an employee because the employee uses cannabis outside of the workplace, unless an employer has a disseminated policy. There are certain exceptions. Further, employers should be mindful of Connecticut’s existing laws limiting drug testing of current employees.
  • Employers generally cannot discharge, refuse to hire, or otherwise take adverse employment action against an employee or prospective employee based on the individual’s cannabis usage outside of the workplace before such employee or prospective employee became employed, unless doing so would cause an employer to violate a federal contract or lose federal funding.
  • Employers can still take appropriate employment action based on reasonable suspicion of an employee’s usage of cannabis while engaged in the performance of work or on call, or upon determining that an employee “manifests specific, articulable symptoms of drug impairment” while working or on call

that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including, but not limited to: (i) symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment [or] machinery, (ii) disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property, (iii) disruption of a production or manufacturing process, or (iv) carelessness that results in any injury to the employee or others.

  • Employers can take adverse employment actions based on positive marijuana drug test results when there is reasonable suspicion (as described above), or after a pre-employment drug test or random drug test (only as permitted by existing Connecticut law), when the employer has an established drug testing policy stating that a positive test result for marijuana may result in adverse employment action.
  • Certain employers can claim exemptions from some of the law’s employer prohibitions, including those in mining, utilities, construction, manufacturing, transportation/delivery, educational services, healthcare or social services, justice, public order and safety activities, and, national security and international affairs. The new law also provides carveouts for certain positions, including: firefighters, emergency medical technicians, police officers, positions requiring operation of a motor vehicle that requires drug testing under state or federal law, positions requiring certification of completion of a course in construction safety and health approved by the Occupational Safety and Health Administration, positions requiring a federal Department or Defense or Department of Energy national security clearance, positions requiring supervision or care of children, medical patients or vulnerable persons, positions for which the law would conflict with federal law, positions funded in whole or in part by a federal grant or if the provisions would otherwise conflict with an employment contract or collective bargaining agreement, positions with the potential to adversely impact the health or safety of employees or members of the public, in the determination of the employer, and positions at a nonprofit organization or corporation, the primary purpose of which is to discourage use of cannabis products or any other drug by the general public.
  • The drug testing provisions of the law do not apply to employers who are required to conduct drug testing pursuant to: (1) U.S. Department of Transportation regulations; (2) a federal contract or grant as a condition of receiving the contract or grant; (3) federal or state laws that require drug testing for safety or security purposes; or (4) a valid collective bargaining agreement that addresses drug testing of applicants, conditions of hiring, or conditions of continued employment for applicants.
  • The employment-related provisions of the law do not apply to the privileges, qualifications, credentialing, review, or discipline of nonemployee, licensed healthcare professionals on the medical staff of a hospital or other medical organization.
  • Individuals aggrieved by employer violations of the law may bring a private right of action, although there are certain defenses available to employers.

Next Steps for Employers

Employers should consider carefully how the new law affects their existing drug testing procedures and hiring processes. Employers also should review existing policies to ensure compliance and to maximize flexibility afforded to employers. Employers that engage in drug testing should revisit reasonable suspicion training and manager training to ensure compliance.

Montana Governor Greg Gianforte signed legislation on May 18, 2021 that will provide protections for off-duty use of marijuana starting on January 1, 2022.

Montana citizens voted to legalize recreational marijuana in November 2020. The ballot initiative did not provide employment-related protections and focused on employer restrictions of on-duty use of the drug.  The newly-signed recreational marijuana law still permits employers to take action based on the use of marijuana while working. Specifically, the law does not:

  • Require employers to permit or accommodate recreational marijuana use (or other conduct permitted by the recreational marijuana law) in any workplace or on the employer’s property;
  • Prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while intoxicated by marijuana or marijuana products;
  • Prevent an employer from declining to hire, discharging, disciplining, or otherwise taking adverse employment against an individual because of the individual’s violation of a workplace drug policy or intoxication by marijuana or marijuana products while working;
  • Prohibit an employer from including in any contract a provision prohibiting the use of marijuana for a debilitating medical condition; or
  • Permit a cause of action against an employer under the State’s wrongful discharge or freedom from discrimination law.

However, employers should take note that the new bill also amended the lawful off-duty conduct statute. As revised, marijuana will be considered a “lawful product” under the law and employers may not refuse to hire or discriminate against an individual with respect to compensation, promotion, or the terms, conditions or privileges of employment because the individually legally uses marijuana off the employer’s premises during nonworking hours.

Notwithstanding the above restrictions, an employer can take action based on off-duty marijuana use if:

  • The use of marijuana affects in any manner an individual’s ability to perform job-related employment responsibilities or the safety of other employees;
  • The use of marijuana conflicts with a bona fide occupational qualification that is reasonably related to the individual’s employment;
  • An individual has a professional services contract with an employer (on a personal basis) and the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products;
  • The employer is a nonprofit organization that, as one of its primary purposes or objectives discourages the use of marijuana by the general public; or
  • The employer acts based on the belief that its actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement.

For employers with drug testing programs, it may be difficult to take adverse employment actions for positive marijuana test results, particularly for pre-employment and random drug tests. In addition, the law does not define “intoxication.” Moreover, Montana has a restrictive drug testing statute that limits the categories of employees who can be subjected to employer drug testing in the first place.

Montana employers are encouraged to review their policies regarding marijuana and drug testing before the law takes effect on January 1, 2022.

The U.S. Department of Transportation Federal Motor Carrier Safety Administration issued a “Clearinghouse Update” on May 27, 2021 reminding commercial motor vehicle drivers who are regulated by the FMCSA that they should exercise caution when considering whether to use hemp and cannabidiol (CBD) products.  Specifically, the update stated that it is important for all employees who perform safety-sensitive functions, including CDL drivers, to know:

  1.   The U.S. Department of Transportation requires testing for marijuana and not CBD.
  2.   The labeling of many CBD products may be misleading because the products could contain higher levels of tetrahydrocannabinol (THC) than what’s stated on the product label.
  3.   The U.S. DOT’s Drug and Alcohol Testing Regulation, 49 CFR Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason.
  4.   CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.
  5.   Since the use of CBD products could lead to a positive drug test result, U.S. DOT-regulated CDL drivers should exercise caution when considering whether to use CBD products.

The U.S. DOT’s “CBD Notice” may be viewed here.

Alabama Governor Kay Ivey signed legislation legalizing medical cannabis on May 17, 2021. Known as the Darren Wesley “Ato” Hall Compassion Act, the law permits the use of medical cannabis to treat certain medical conditions including Crohn’s disease, depression, epilepsy, HIV/AIDs, panic disorder, Parkinson’s disease, persistent nausea, post-traumatic stress disorder, chronic or intractable pain, among others.  The law was effective immediately upon signing by the Governor, although medical cannabis will not become available for at least a year.

Medical cannabis may be used in a variety of forms including oral tablet, capsule or tincture; gel, oil, cream or other topical preparations; suppository; transdermal patch; nebulizer; liquid oil for administration using an inhaler.  Medical cannabis may not be used by smoking or vaping, or by consuming food products such as cookies or candies.  In addition, the law does not permit recreational marijuana use.

The medical cannabis law contains many favorable provisions for employers.  Specifically:

  1. Employers are not required to permit, accommodate, or allow the use of medical cannabis, or to modify any job or working conditions of any employee who engages in the use of medical cannabis or for any reason seeks to engage in the use of medical cannabis.
  2. Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges of employment as a result, in whole or in part, of that individual’s use of medical cannabis, regardless of the individual’s impairment or lack of impairment resulting from the use of medical cannabis.
  3. Employers are not prohibited from establishing or enforcing a drug testing policy, including, but not limited to, a policy that prohibits the use of medical cannabis in the workplace or from implementing a drug-free workforce program established in connection with the state workers’ compensation premium discount law.
  4. Employers are not prohibited from adopting an employment policy requiring its employees to notify the employer if an employee possesses a medical cannabis card.
  5. The law does not interfere with, impair, or impede, any federal restrictions on employment, including, but not limited to, regulations adopted by the U.S Department of Transportation.
  6. The law does not permit, authorize, or establish any individual’s right to commence or undertake any legal action against an employer for refusing to hire, discharging, tenure, terms, conditions, or privileges of employment due to the individual’s use of medical cannabis.
  7. The law does not require a government medical assistance program, employer, property and casualty insurer, or private health insurer to reimburse an individual for costs associated with the use of medical cannabis.
  8. The law does not affect, alter, or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace policy certified by the state’s workers’ compensation premium discount law.
  9. The law does not affect, alter, or otherwise impact an employer’s right to deny, or establish legal defenses to, the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit or to cooperate with a drug test, as provided in the state workers’ compensation premium discount law.
  10. An individual who is discharged from employment because of that individual’s use of medical cannabis, or refusal to submit to or cooperate with a drug test, shall be legally conclusively presumed to have been discharged for misconduct if the condition of the workers’ compensation premium discount law are met.

Alabama employers should review the law to determine whether any revisions to drug and alcohol testing policies or other workplace policies will be necessary.

The Mississippi Supreme Court held on May 14, 2021 that a citizen initiative to legalize medical marijuana violated the Mississippi Constitution.  The decision turned on the loss of a congressional district due to the 2000 Census.  Butler v. Watson, Case No. 2020-IA-01199-SCT (May 14, 2021).

Background

The Mississippi Constitution allows amendments in two different ways: (1) by the Mississippi Legislature with a vote from qualified electors; or (2) by citizen initiative.  On November 3, 2020, the Secretary of State placed Initiative 65 on the ballot so that Mississippians could weigh in on the issue of medical marijuana.  Mississippians voted overwhelmingly (74.1%) to adopt Initiative 65 thus leading the path towards legalization of medical marijuana use in the state.

Why Did the Supreme Court Nullify the Vote?

Mississippi’s Constitution was enacted in 1890.  According to the Constitution, a citizen initiative to amend the Constitution must include signatures of qualified electors of each congressional district.  The signatures, however, cannot exceed one-fifth of the total number of required signatures.  If the proposed initiative contains signatures from a single congressional district exceeding the one-fifth limitation, the Secretary of State cannot consider those signatures before placing an initiative on the ballot.

At the time of the enactment of the Mississippi Constitution, Mississippi had five congressional seats in the United States of House of Representatives.  The effect of the twenty percent cap, tied to five congressional districts, was that no more than twenty percent of the total number of required signatures would come from each congressional district. The system guaranteed that each congressional district would be equally a part of the process.

Along came the 2000 Census and federal court intervention.  Mississippi lost a representative due to the results of the 2000 census and the Permanent Reapportionment Act of 1929.  When Mississippi failed to redraw its congressional districts to be in line with the Census, the federal courts intervened and redrew the districts for the State in 2002.  Since that time, Mississippi has had only four congressional districts.  However, the Constitution never was amended to change the number of signatures required to place a citizen initiative on the ballot.

After an exhaustive analysis of the Constitutional requirements for a citizen initiative, the Court found that the Secretary of State did not have the authority to place the initiative on the ballot when only four districts submitted signatures.   It was impossible for the Secretary of State to follow the Mississippi Constitution to disregard signatures of qualified electors in excess of twenty percent of the total from any one district.  “In other words, twenty multiplied by four equals only eighty.”  The Court nullified the overwhelming vote to legalize medical marijuana use in Mississippi, noting that the ballot initiative process “cannot work in a world where Mississippi has fewer than five representatives in Congress.”

What Comes Next?

What comes next is anyone’s guess.  The Mississippi Legislature has proposed to legalize medical marijuana use in the past few years; however, the proposals never made it out of committee to a floor vote.  Given the overwhelming vote, it is quite possible that the Mississippi Legislature will take it upon themselves to amend Mississippi’s Constitution and those proposals will get out of committee to a floor vote.

The city of Philadelphia, PA. has enacted a law prohibiting employers from testing for marijuana as a condition of employment, effective January 1, 2022.

The new Chapter 9-4700 of the Philadelphia Code states that except as otherwise provided by law, or as provided in the exceptions (listed below) that it is unlawful for an employer, labor organization, employment agency or agent thereof to require a prospective employee to submit to marijuana testing as a condition of employment.

There are exception in the law for individuals working in certain jobs or professions:

  1. Police officers or other law enforcement positions;
  2. Any position requiring a commercial driver’s license;
  3. Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
  4. Any position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to this Chapter.

The new law also states that it does not apply to drug testing that is required by:

  1. Any federal or state statute, regulation or order that requires drug testing of prospective employees for purposes of safety or security;
  2. Any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer than requires drug testing of prospective employees as a condition of receiving the contract or grant; or
  3. Any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

Philadelphia employers should watch for the regulations to be implemented by the agency with enforcement responsibility concerning the types of jobs that “could significantly impact the health or safety of other employees or members of the public.”  In addition, employers should review their drug and alcohol testing policies and be ready to make any required changes prior to January 1, 2022.

A federal court in California dismissed the disability discrimination claims of a job applicant who failed a pre-employment drug test due to medical marijuana use, holding that he did not sufficiently prove that he was disabled.  More specifically, the court concluded that the applicant’s “subjective belief” that he suffered from “chronic back pain” was insufficient to establish that he was disabled for purposes of the California Fair Employment and Housing Act (“FEHA”) where he failed to “provide any supporting documentation . . . to substantiate the nature of his purported physical disability or any consequent restrictions or limitations on his ability to perform his work.” Espindola v. Wismettac Asian Foods, Inc., No. 2:20-cv-03702 (C.D. Cal. Apr. 28, 2021).

The employer extended an offer of employment to the applicant (who lived in Florida) for an executive level position at their location in California.  Pursuant to the offer letter, the applicant’s employment was at-will and subject to the policies set forth in the employer’s Employee HandbookThe Handbook outlined the employer’s drug testing policy and, specifically, its pre-employment drug testing policy.  The employer did not provide the applicant with a copy of the Handbook nor did the employer explicitly state that the offer of employment was contingent upon passing the pre-employment drug test.

After the applicant’s acceptance of the offer of employment, but prior to starting the position, the employer informed the applicant that he must submit to pre-employment drug testing. The applicant requested the testing be delayed because he had contractors working in his home in Florida and he was going overseas to visit his mother.  The employer obliged and delayed the drug test.  A few days later, the applicant sought a medical marijuana card in Florida.  The drug test was delayed until the applicant’s first day on the job in California.  Prior to his first day of work, he never told anyone that he used medical marijuana or that he was disabled.

While completing the completed the onboarding paperwork, the applicant signed a drug testing consent form.  After completing this paperwork, the applicant informed the employer’s CEO that he suffered from “chronic back pain” and that he had obtained a medical marijuana card from the State of Florida.  As proof that he was prescribed marijuana to treat his purported condition, the applicant submitted correspondence from the Florida Department of Health which confirmed the applicant’s approval for a medical marijuana card.  The correspondence, however, did not contain any information regarding the applicant’s underlying medical condition, or the criteria used in deciding whether to issue a medical marijuana card.

A few days later, the applicant submitted to the pre-employment drug test and tested positive for marijuana.  Upon receipt of the drug test results, the employer terminated the applicant’s employment.

The applicant filed a federal action for, among other things, retaliation and disability discrimination under the FEHA for wrongful termination, failure to accommodate, and failure to engage in the interactive process.  The employer moved for summary judgement on all claims arguing that the applicant could not establish a prima facie case for disability under the FEHA because the mere reporting of subjective symptoms is not sufficient to establish a disability under the FEHA.

The Court agreed with the employer, noting that the applicant failed to provide any supporting documentation that would establish that “his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline,” nor did he “provide any explanation or detail concerning how his chronic back pain limited his ability to work.”   The Court also noted that during the short time that the applicant worked for the employer, he worked full days and completed multiple projects without incident, further demonstrating that the applicant’s purported disability did not impact his ability to work. Moreover, the applicant never made any specific request for an accommodation.

The applicant also argued that the pre-employment drug test was illegal because it was conducted after he commenced working and was used as a pretext to fire him for his disability.  The Court rejected these arguments.  The applicant was advised before his employment started that he would be required to submit to pre-employment drug testing and even was granted a delay in testing at his own request.

Accordingly, the Court granted the employer’s motion for summary judgment in its entirety.

The New Jersey Supreme Court ruled that an employer and its workers’ compensation carrier must reimburse an injured worker for his medical marijuana expenses.  Hager v. M&K Construction, 2021 N.J. LEXIS 332 (N.J. April 13, 2021).

Hager suffered a back injury in a work-related accident in 2001.  He underwent surgeries and used opioid medications for chronic pain.  In 2016, Hager enrolled in New Jersey’s medical marijuana program and began using medical marijuana both for pain treatment and to overcome an opioid addiction.  His marijuana prescription cost him more than $600 per month.  A workers’ compensation court ordered the employer to reimburse Hager for the ongoing costs of his medical marijuana costs.  An appellate court affirmed that order.

The employer made several arguments as to why it should not be required to pay for the employee’s medical marijuana expenses.  All were rejected by the New Jersey Supreme Court.

First, the court ruled that the federal Controlled Substances Act (CSA) did not preempt the state’s medical marijuana law, nor would it subject the employer to potential federal criminal liability for aiding-and-abetting.  The CSA is the federal law that makes marijuana illegal.  Despite its illegal status, the court noted that the U.S. Department of Justice has deprioritized marijuana prosecutions and that Congress has prohibited the DOJ from using allocated funds to prevent states from implementing their medical marijuana laws.  The court therefore concluded that the medical marijuana law did not create an obstacle to the accomplishment of congressional objectives and therefore there was no preemption.  In addition, the court was unpersuaded by the employer’s argument that it would be “aiding and abetting” a crime by assisting in Hager’s possession of marijuana which is illegal under the CSA.  Observing that the employer “has gone to great pains” to oppose Hager’s marijuana use – as evidenced by the litigation – reimbursing him for medical marijuana expenses was not aiding his possession of marijuana.  Rather, it was compelled by a court order.  Given the employer’s lack of intent, there was no aiding and abetting of a crime.

Second, the court rejected the employer’s argument that the medical marijuana was not a “reasonable or necessary” treatment under the New Jersey Workers’ Compensation Act.  The court held that medical marijuana may be found – subject to competent medical testimony – to constitute reasonable and necessary care under the New Jersey workers’ compensation scheme.  Hager presented medical testimony that he remained in chronic pain and that ongoing treatment was necessary.  Medical marijuana was deemed to be appropriate medical treatment as it provided pain relief and treated Hager’s addiction to opioids.

Finally, the court rejected the employer’s argument that it fit within an exception in the state’s medical marijuana law.  Specifically, the medical marijuana law provides that reimbursement for medical marijuana costs is not required of “a government medical assistance program or private health insurer.”  The employer claimed to be exempt under this provision.  However, the court held that the legislature did not intend for workers’ compensation insurers to be treated as private health insurers or government medical assistance programs.  The legislature could have explicitly exempted workers’ compensation carriers but did not do so. Therefore, there was no exemption from the reimbursement obligation.

2021 has brought a flurry of activity surrounding marijuana laws, particularly recreational marijuana use. The number of states approving recreational marijuana continues to grow.

New Mexico

On April 12, 2021, New Mexico Governor Michelle Lujan Grisham signed the state’s recreational marijuana bill. The New Mexico recreational marijuana law will take effect in late June 2021. Unlike the recent marijuana laws enacted in New York and New Jersey that provide employment protections for off-duty recreational marijuana users, the New Mexico law does not “prevent or infringe upon the rights of an employer to adopt and implement a written zero-tolerance policy regarding the use of cannabis products.”  The law permits employers to take adverse employment actions for the possession or use of marijuana at work or during work hours.  Additionally, the law specifically permits zero-tolerance policies that impose discipline or termination for a positive marijuana test result indicating any amount of THC. However, employers should take note that the law does not restrict rights afforded to medical marijuana users under state law.

Virginia

Effective July 1, 2021, individuals over the age of 21 can lawfully possess up to an ounce of marijuana in Virginia. The new law creates a Virginia Cannabis Control Authority which will implement regulations for the adult use of marijuana market.  In late March, Virginia also amended the state’s medical cannabis law to prohibit discrimination against lawful users of medical cannabis oil. The law, which becomes effective July 1, 2021, does not restrict employers from taking action based on workplace impairment due to use of cannabis oil. It also contains exceptions for employers if compliance with the law would result in a loss of a federal contract or federal funding, and for defense industrial base sector employers.

South Dakota

The fate of recreational marijuana is yet to be determined in South Dakota. As previously reported, voters approved both recreational and medical marijuana initiatives in November 2020. However, the South Dakota recreational measure was later struck down as unconstitutional. That ruling has been appealed, and the South Dakota Supreme Court will hear arguments on the issue later this month.