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The High Points: Addressing Medical Marijuana Issues in the Virginia Workplace

As you have likely noticed, the tides have been turning on the issue of medical marijuana in America—as more than half of all states have comprehensive medical marijuana laws, and several have expanded to legalize various forms of recreational marijuana use. Meanwhile, marijuana remains a Schedule I controlled substance under federal law. All of this might leave employers confused about how to approach the issue of medical marijuana when it arises.

In February 2015 Governor Terry McAuliffe signed into law an exception to the State Code Virginia Drug Control Act which classifies marijuana as an illegal substance, by carving out a medical exception for cannabidiol oil or THC-A oil to treat intractable epilepsy. In order to prescribe cannabidiol oil a board-certified neurologist or medical doctor specializing in the treatment of epilepsy must make a written certification on the proper form provided by the Executive Secretary of the Virginia Supreme Court. While this gives access to THC-A oil to epileptic patients, it does not prevent such individuals from arrest and prosecution but merely provides an affirmative defense should they be prosecuted for possession or use of such oil. The bill does not explicitly grant or deny any employment protections for employees who have been prescribed THC-A oil.

This month, following the grassroots “Let Doctors Decide” campaign, Virginia lawmakers unanimously approved legislation to allow medical providers to prescribe cannabidiol oil to treat any diagnosed condition or disease and giving the freedom to medical providers to determine which ailments are treatable with cannabidiol oil. This bill has made its final passage in the House of Delegates on Wednesday, February 21, 2018 and is heading to Governor Ralph Northam’s desk for signature.

So what does this mean for Virginia employers?

When it comes to DOT-regulated CDL drivers, the DOT came out with a very clear memo in October 2017 on the medical marijuana issue stating: “The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result. […] It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana. We want to assure the traveling public that our transportation system is the safest it can possibly be.”

When it comes to non-DOT regulated employees, the issue is much less clear. While on the one-hand Virginia is an at-will employment state and one might assume any use of marijuana in any form could be justification for termination, a closer look reveals that the issue is more complex. An employer’s right and duty to maintain safety in the workforce must be balanced against an employee’s protections under the Americans with Disabilities Act and the Virginia Human Rights Act—which establishes a state-based employment right against discrimination on the basis of a disability.

Historically, workers who were fired for off-duty medical marijuana use have lost lawsuits where they challenged their employer’s decision. For example, in 2015, the Colorado Supreme Court found that even though a worker was permitted to use medical marijuana under state law, his termination was justified because marijuana is still illegal under federal law.

Recent judicial decisions, however, signal a shift in the way courts are approaching medicinal use. In May 2017, a Rhode Island court sided with a job candidate who was passed over because she disclosed to her potential employer that she was a medical marijuana cardholder and would fail a pre-employment drug test. The court said the employer couldn’t refuse to hire her because of her status as a medical marijuana cardholder.

In July 2017, the Massachusetts high court held that a registered medical marijuana user who was fired for failing a drug test could proceed in state court with her disability discrimination claim. The employer in that case claimed that all marijuana use is a federal crime, and therefore, an accommodation for such use is unreasonable. But the court disagreed and held that, under the state’s disability discrimination law, employees have the right to seek a reasonable accommodation for medical marijuana use.

Seeing that we are on the precipice of a substantially larger pool of employees holding cannabidiol/THC-A oil prescriptions with the passage of the newest Virginia medical marijuana bill, this will very soon become a prevalent issue for many employers. This issue places employers between a rock and a hard place in which they must carefully balance the safety-sensitivity of a given position against the legal protections for the disabilities of their employees. The best employment decision will vary based upon the different facts and circumstances of each individual case. Setliff & Holland is here to help you examine the facts and assist you in making the best decision when balancing two competing goals: workplace safety and protections for individuals suffering from disabling conditions.

If you have any questions about this article, contact Steve Setliff at 804-377-1261, or