As July 1 nears, employers in Virginia are evaluating what the commonwealth’s legalization of marijuana for recreational use means for the workplace.
Experts say the change in the law doesn’t require major adjustments from employers, but it might prompt some to change common policies and practices, such as drug testing.
While recreational marijuana use will now be legal, those who partake are not part of a protected class that would prohibit employment discrimination, said Michael Gardner, a principal of the labor and employment practice group at Woods Rogers in Roanoke.
“Employers can still insist that they have a drug-free workplace. They can still treat a positive marijuana result on a drug test as a failed screen, and they can still discipline and terminate for it if they want,” he said.
There are a few reasons for this, Gardner explained: Virginia is an at-will employment state, meaning either party can at any time for any lawful reason end the employment relationship. And the commonwealth lacks an off-duty conduct law.
“Some states say you can’t fire an employee for doing something legal outside of work,” he said. “Because Virginia doesn’t have that, the employer can simply have a preference that they would rather not have an employee who smokes weed outside of work.”
Virginia does, however, now offer workplace protection to medical marijuana users. If an employee with a prescription for marijuana has a positive screen, the law prevents any adverse employment action against them, Gardner said.
But there are some exceptions. If an employee has a “safety-sensitive” position — maybe she operates heavy machinery or needs some kind of license that demands a clean drug screen — Gardner said the employer still can and should enforce marijauna-free requirements.
“You can still prohibit work impairment, you can absolutely prohibit use or possession at work, even if the employee has a script,” he said.
If an employee who uses medical marijuana has such a position, Gardner said the employer would be obligated under the Americans with Disabilities Act to discuss possible accommodations with them.
Gardner anticipates that the number of employers — especially those with a large labor force — that screen for marijuana as a general practice is likely to decline. But, based on the conversations he’s had with employers, it doesn’t appear that will happen quickly.
Legalization might make it easier for employees and employers to have a dialogue about their policies regarding marijuana use, Gardner said. He encourages clients to have an “explicit statement” in their drug policy about marijuana use, which few likely singled out previously, so their stance is clear.
Employers might end up changing their policies not for legal reasons, but practical ones.
“If recreational legalization results in an increase of people who are using and you’re still screening out anybody who’s got a positive test, then you may make it harder to recruit and retain in a labor market that’s already tight,” Gardner said.
Michael Latsko, immediate past president of HR Virginia, the state affiliate of the Society for Human Resource Management, said companies will likely have to tweak some language in their policies to ensure they conform with the law, but otherwise little has changed.
Some of the employers Latsko has spoken with said they plan to “reaffirm their commitment to a drug-free workplace” and reiterate that no one should be impaired on the job, from alcohol, cannabis or any drug.
“The mere fact that possession is legal doesn’t necessarily impact the notion of impairment on the job,” he said.
Betty Wilcher, president of HR Virginia, said many of the people she’s spoken with have said their companies plan to treat cannabis like alcohol. Drinking off the job is fine, but at work employees need to be “fit for duty.”
“That’s the main thing as far as your employment relationship, is that when you come to work you’re not bringing alcohol into work with you or any other substance and you’re able to do your job and do it efficiently and safely,” she said.
But the legalization of marijuana may prompt employers to make some changes. They might decide not to look for convictions related to cannabis during background checks. Testing for cannabis is tricky because of how long it can stay in a person’s system. As a result, Latsko said, some employers may choose to drop it from drug-testing panels.
“If it’s legal to possess, you could have done it on your own time and yet it’s still in the system. There is no real good test about the impairment of marijuana,” he said.
While the law has changed, that doesn’t necessarily mean the views of hiring managers have, Latsko said. He noted that there may be generational differences of opinion and social stigma around cannabis.
Companies likely will watch their peers to see how they respond to the legalization of marijuana, Latsko said, looking to see who will be “the first mover,” making a dramatic change.
“If there starts to be this snowball effect of organizations that drop testing for this and it seems to be getting groundswell among social media, popular media, what have you, then of course other people are going to jump on the bandwagon,” he said. “That may then sway even more states or even the federal government to consider the issue a little more closely.”
Local employers are responding in a variety of ways.
Roanoke County employees remain prohibited from using marijuana because it is still deemed illegal at the federal level, said Peter Lubeck, the county attorney.
“We have instructed employees that we consider it illegal, we expect you to abstain from it at all times but it’s not something that we’re going to be regularly screening for,” he said. “If someone reports to the workplace and appears under the influence, we have a policy for how we would screen them.”
The city of Roanoke is still in the process of developing a policy in response to legalization, according to a spokesperson.
Carilion Clinic has not changed its policy prohibiting the possession and use of recreational drugs on its campus, spokeswoman Hannah Curtis said. Asked whether use of cannabis off campus while off the clock would affect an individual’s employment status, Curtis said employee impairment at work is prohibited and employee behavior is evaluated on a case-by-case basis.
Virginia Tech employees are prohibited from using marijuana when doing the work of the university on or off campus. The university doesn’t conduct drug testing unless it is required by a regulatory agency, state or federal law; examples include university police officers and employees who hold a commercial driver’s license, spokesman Mark Owczarski said.
So if an employee is off campus, off the clock and in compliance with the law, and does not hold a position that requires testing, using marijuana would not affect their employment status, Owczarski said.
Starting July 1, he said, a section of Virginia Tech’s online job application that asks applicants to list past criminal convictions will feature slightly different language. It will say applicants do not need to provide information about any “civil fine for marijuana possession or conviction of simple possession of marijuana.”