Following closely on the heels of both New York and New Jersey enacting recreational cannabis laws, New Mexico and Virginia have enacted their own laws allowing adults to use cannabis for recreational purposes. Virginia went further by enacting the first law providing employment protections to individuals using cannabis oil. Although not immediately effective, New Mexico and Virginia employers should immediately assess the implications of the laws on their current policies and drug testing practices.
Virginia’s Cannabis Oil Law
In late March 2021, Virginia amended the state’s medical cannabis law to prohibit discrimination against lawful users of medical cannabis oil, which is defined to mean: any formulation of processed cannabis plant extract, which may include oil from industrial hemp extract acquired by a pharmaceutical processor pursuant to state law; or a dilution of the resin of the cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose. The term does not include industrial hemp, as defined in state law, that is grown, dealt, or processed in compliance with state or federal law, unless it has been acquired and formulated with cannabis plant extract by a pharmaceutical processor.
The law, which becomes effective July 1, 2021, states:
- No employer shall discharge, discipline, or discriminate against an employee for their lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease pursuant to the state’s cannabis oil law.
- Notwithstanding this prohibition, the law does not (i) 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, (ii) 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, or (iii) require any defense industrial base sector employer or prospective employer, as defined by the U.S. Cybersecurity and Infrastructure Security Agency, to hire or retain any applicant or employee who tests positive for THC in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.
Virginia Recreational Cannabis Law
Beginning on July 1, 2021, the Virginia Cannabis Control Act (CCA) will allow those 21 years of age or older to possess up to one ounce of cannabis and to cultivate up to four cannabis plants per household for personal use. Retail sales will not begin until January 1, 2024. However, some advocates continue to push for an earlier start to retail sales, particularly for already-established dispensaries.
The CCA does not directly address drug-free workplaces, though it acknowledges that cannabis causes impairment and prohibits driving while under the influence of cannabis. We have no reason to doubt that employers can still prohibit cannabis and impairment at their worksites, but we will monitor developments in that state to see whether it may issue further guidance in this area.
New Mexico Recreational Cannabis Law
On April 12, 2021, New Mexico Governor Michelle Lujan Grisham signed the state’s recreational cannabis law. It is effective in late June 2021. While the law does not provide employment protections to recreational users, New Mexico employers still must be mindful of the protections afforded to those using cannabis for medicinal purposes.
The law states that it does not:
- Prohibit an employer from taking an adverse employment action against an employee who is impaired by, possessing, or using cannabis at work or during work hours.
- Require an employer to commit any act that would cause it to be noncompliant with or in violation of federal law or federal regulations or that would result in the loss of a federal contract or federal funding.
- Prevent or infringe on an employer’s rights to adopt and implement a written zero-tolerance policy regarding cannabis use, which may allow for the discipline or termination of an employee on the basis of a positive drug test that indicates any amount of THC or its metabolites.
The law does not apply to employees who are subject to the provisions of the Federal Railway Labor Act and should not be construed to interfere with any collective bargaining agreement between the employer and a labor organization representing its employees.
Next Steps for Employers
Employers should monitor developments surrounding these new laws and stay aware of regulatory developments that further address impacts the laws may have on workplaces in New Mexico or Virginia. Employers also should consider reviewing and revising their drug and alcohol free workplace policies and practices to ensure compliance in New Mexico, Virginia and the many other states with such laws.