Virginia Enacts “Ban the Box” for Simple Marijuana Possession

Virginia temporarily grabbed the media’s attention away from the coronavirus on May 21, 2020 when Gov. Ralph Northam signed a bill decriminalizing simple possession of marijuana under state law. While it remains unlawful in Virginia to possess marijuana even for personal use, such possession now will result in a civil penalty of no more than $25, rather than a criminal conviction subject to jail time. The new law takes effect on July 1, 2020.

The new law also prohibits employers from requiring job applicants to disclose information concerning any arrest, criminal charge or conviction for simple possession of marijuana. (The new law does not apply to distribution of or intent to distribute marijuana.) In addition to restricting employers’ questions during the hiring process, the law also gives applicants a statutory right not to disclose such information to their prospective employers. Specifically, the law allows job applicants — when answering questions about arrests, criminal charges and convictions — to exclude references to or information about simple possession of marijuana. The law also prohibits educational institutions from demanding the same information from applicants for admission.

Employers who utilize a third-party consumer reporting agency to conduct criminal history checks of applicants may likewise be precluded from learning about simple marijuana possession arrests, charges and convictions. The new law provides that such information maintained in the Virginia Central Criminal Records Exchange will not be open for public inspection, subject to certain statutory exceptions.

In an interesting twist, while marijuana possession for personal use will no longer be a crime in Virginia, employers and educational institutions will be subject to criminal penalties if they willfully violate this “ban-the-box” rule. Willful violators can be found guilty of a Class 1 misdemeanor for each violation. McGuireWoods previously reported on Virginia’s April 2015 ban-the-box executive order affecting state government employment applications. The new rule, however, applies to the commonwealth’s private employers.

In light of this new legislation, employers should review their policies to ensure they adequately address the employer’s stance regarding possession of marijuana in the workplace, bearing in mind that possession of marijuana remains a criminal offense under federal law. More urgently, however, employers need to review their job applications and hiring procedures, and may need to retrain recruiters, HR professionals and hiring managers to comply with the law’s hiring provisions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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