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Virginia Criminalizes Employer Questions About Marijuana

by | Jun 3, 2020 | Employment & Labor Law

Virginia is on its way to becoming a marijuana-friendly state, but not if you are an employer. Beginning on July 1, 2020, it will be a crime for a Virginia employer to ask applicants to reveal if they have been charged or convicted of simple marijuana possession.

The new law first downgrades simple marijuana possession (possession without the intent to distribute) from a crime to a civil offense with only a $25 penalty. See New Va. Code § 18.2-250.1.

The new law then restricts all employers from asking questions about prior simple marijuana possession. Employers will still be able to ask applicants about their involvement in prior criminal activity. But if an employer asks about simple non-criminal marijuana possession, and does so willingly, Virginia will consider that question to be a Class 1 Misdemeanor, punishable by confinement in jail for not more than twelve months and/or a fine of not more than $2,500. See New Va. Code § 19.2-389.3(D). The new law will also protect applicants by giving them a right not to disclose information about prior simple possession, even when asked. See New Va. Code § 19.2-389.3(B).

Although the new laws are straightforward, compliance with them may nevertheless trigger many questions. For example, how should the new laws be applied when marijuana possession remains a crime under federal law? What if employees are working at a federally controlled job site? Can an employer still require drug testing of employees who perform certain critical jobs?

To prepare for July 1st, employers should review their hiring policies to ensure that they conform to the new Virginia laws. Employers with complex situations may also find it necessary to talk with an employment lawyer to resolve thorny issues or to retrain hiring managers.

Clyde Findley is Special Counsel in the Intellectual Property practice at Berenzweig Leonard. He can be reached [email protected].