Virginia employers are trying to keep up with the influx of changes and updates to the Virginia employment law landscape, including changes to the state’s marijuana laws.
It still remains unlawful for a person to knowingly or intentionally possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act. Such cases can be prosecuted.
However, under a new state law that took effect July 1, a person who possesses marijuana “is subject to a civil penalty of not more than $25.”
Thus, while it is unlawful to possess marijuana, the consequences are only civil offenses, not criminal, which explains the ongoing narrative that marijuana possession has been decriminalized in Virginia.
Because marijuana possession is no longer considered a crime, Virginia lawmakers passed new legislation prohibiting prior marijuana convictions from barring employment. The new law made certain past marijuana convictions undiscoverable and then prohibited employers from asking about anything that is undiscoverable.
Under the new Virginia code, certain prior marijuana conviction records are now under seal, meaning they cannot be open for public inspection or otherwise disclosed, with a few exceptions, such as applications to purchase a firearm.
“An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection,” according to the new law.
The law also states, “An applicant need not, in answer to any question concerning any arrest, criminal charge, or conviction, include a reference to or information concerning any arrest, criminal charge, or conviction when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection.”
The law similarly applies to agencies, officials and employees of the state and local governments.
A job applicant cannot be denied employment solely because the person refuses to disclose information concerning such arrest, criminal charge or conviction.
The law states that violations can result in criminal prosecution as a Class 1 misdemeanor for each.
In Virginia, this means it is not a crime to possess marijuana but it is a crime to inquire about prior convictions for marijuana that are undiscoverable and then use that information in the employment setting.
Employers need to make sure they are updating their hiring practices, including applications and background screenings, to comply with the new law.
The prohibited provisions are different from employers conducting drug screening on prospective or current employees. Nothing in the law prevents companies from conducting such drug screening tests and denying employment based on those results.
Furthermore, marijuana remains a controlled substance under federal law, and therefore employees who use marijuana for medical purposes are not protected by the Americans with Disabilities Act.
As state and federal laws continue to conflate and conflict, and new legislation is being considered frequently, employers are wise to continue to update policies and practices and seek advice on the latest information for hiring and employment practices.
Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at firstname.lastname@example.org.