The Virginia Governor signed into law an expansion to existing cannabis law effective July 1, 2024 making an allowance for medical cannabis oil to be treated the same as medical marijuana.
Medical marijuana has been legal in Virginia in some form since 2015 when the Virginia General Assembly authorized possession of marijuana based on a doctor’s recommendation. Medical marijuana cards protected individuals from criminal prosecution, but not from potential adverse employment actions. In 2021, the Virginia legislature passed a provision making marijuana legal for adults to use and possess in-state (up to one ounce) and added employment protections for medical marijuana cardholders by prohibiting employers from terminating, disciplining, or otherwise discriminating against an employee for such employee’s lawful use pursuant to a valid written certification issued by a licensed practitioner.
This certification should state that using cannabis in any form will treat or reduce an employee’s adverse symptoms of a medical condition. Use does not excuse employees from work related performance issues employees are still prohibited from use or possession of cannabis during work hours. Marijuana possession and use, including consumption or impairment at work, continues to be illegal. Marijuana is still illegal for all purposes under federal law and for employees of government contractors, the stricter federal rule continues to apply.
Virginia law does not:
- “Restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours. (Va. Code Ann. § 40.1-27.4(C)(i).) “
- “Require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding. (Va. Code Ann. § 40.1-27.4(C)(ii).) “
- “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 specified amounts. (Va. Code Ann. § 40.1-27.4(C)(iii).) “
- Authorize employees who work in positions that “are safety-sensitive or otherwise regulated by outside authorities, including employees specifically performing work under federal contracts” to be protected when it comes to marijuana use in any form.
The 2021 statute allows Virginia employers to drug test employees who work in certain regulated jobs regardless of whether the employee shows signs of impairment at work or whether the employee has been certified to use medical marijuana.
Virginia Adds Protections for Ethnic Origin
Ethnic origin has been added as a protected characteristic to the Virginia Values Act anti-discrimination statute effective July 1, 2024. The statute applies to employers with 15 or more employees, except for the unlawful discharge section, which applies to employers with six or more employees. House Bill 18, which became the law, provides that it is the policy of the Commonwealth to safeguard all individuals within the Commonwealth from unlawful discrimination in employment and in places of public accommodation because of such individual’s ethnic origin and prohibits such discrimination. The bill also adds victims who are intentionally selected because of their ethnic origin to the categories of victims whose intentional selection for a hate crime involving assault, assault and battery, or trespass for the purpose of damaging another’s property results in a higher criminal penalty for the offense. The bill also provides that no provider or user of an interactive computer service on the Internet shall be liable for any action voluntarily taken by it in good faith to restrict access to material that the provider or user considers to be intended to incite hatred on the basis of ethnic origin.
Ethnic origin and ethnicity (a.k.a. one’s roots or heritage) are your cultural expression and cultural identity chosen or learned from your culture and family. Ethnicity can also refer to an identification of people of different geographic regions, including their customs, history, language, and religion. Various groups are categorized according to the U.S. Census Bureau. The Virginia Values Act (SB868), enacted July 1, 2020, extended existing state non-discrimination protections in public employment, housing and credit to Virginians on the basis of sexual orientation, gender identity and several other characteristics. The law also created protections for Virginians from discrimination in private employment and places of public accommodation based on race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, and status as a veteran.
Prohibited Employment Policies/Practices
A general best practice rule, all employment decisions should be made in a nondiscriminatory manner regardless of where the business is located or the size of the business. Covered employers with 15 or more employees fall under the laws enforced by the Equal Employment Opportunity Commission (EEOC). If a complaint involves age discrimination, the business is covered by the laws if it has 20 or more employees. Virtually all employers are covered by the Equal Pay Act (EPA), which makes it illegal to pay different wages to men and women if they perform substantially equal work in the same workplace.
Federal Equal Employment Opportunity (EEO) laws prohibit specific types of job discrimination in certain workplaces. The U.S. Department of Labor (DOL) has two agencies which deal with EEO monitoring and enforcement, the Civil Rights Center, and the Office of Federal Contract Compliance Programs.
- Civil Rights Center oversees EEO in programs and activities receiving federal financial assistance and assures equal opportunity for all applicants to and employees of DOL.
- The Office of Federal Contract Compliance Programs oversees employers holding federal contracts and subcontracts
- The Equal Employment Opportunity Commission (EEOC) is an independent federal agency that promotes equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws. Under the laws enforced by EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
The EEOC gives these practical examples of discriminatory practices:
- Job Advertisements – A help-wanted ad that seeks “females” or “recent college graduates” may discourage men and people over 40 from applying and may violate the law.
- Recruitment – An employer’s reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic.
- Application & Hiring – Refusing to give employment applications to people of a certain race.
- Testing – If applicants are required to take a test, the test must be necessary and related to the job and the employer may not exclude people of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, or individuals with disabilities.
- Pay And Benefits – an employer may not pay less or more because of their national origin, and men and women in the same workplace must be given equal pay for equal work.
- Discipline & Discharge – If two employees commit a similar offense, an employer many not discipline them differently because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
- Reasonable Accommodation & Disability – employer must provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
- Constructive Discharge/Forced to Resign – Forcing an employee to resign by making the work environment so intolerable a reasonable person would not be able to stay.