Virginia Officials Publish Guidance On Marijuana Consumers’ Workplace Rights

As Virginia lawmakers prepare to resume efforts to legalize adult-use
marijuana sales in next year’s legislative session, state officials have
released guidance on a recently enacted law that provides employment
protections for workers who use cannabis while off duty.

Virginia has a medical cannabis program—and recreational use and personal
cultivation were legalized in 2021, but there’s not currently a system of
regulated sales for recreational use. While legislators have already taken
steps to enact further reforms to allow marijuana sales from licensed
retailers, with a legislative commission putting forward a framework last
week in hopes of advancing the issue in 2026, the Department of Labor and
Industry (DOLI) published a new document outlining workplace protections
for cannabis consumers.

The guidance states that employers “should not take employment actions,
including discipline or termination of employment, against an employee
based upon the presence of cannabinoid metabolites in the individual’s
bodily fluids in an employer-required or requested drug test without
additional factors indicating impairment…unless the employer has
established a drug free workplace based on its reasonable workplace drug
policy.”

For medical cannabis patients specifically, the guidance from DOLI’s
Virginia Occupational Safety and Health program stipulates that no
employers may “discharge, discipline, or discriminate against an employee
for such employee’s lawful use of cannabis oil under the laws of the
Commonwealth 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.”

There are exceptions built into the rule, which is being implemented in
response to the enactment of bills signed into law in recent sessions.

Impairment during work hours would not be protected, and employers could
not be required to do anything that would cause them to be “in violation of
federal law or that would result in the loss of a federal contract or
federal funding.” Additionally, defense industrial base sector employers
could still take adverse action against workers who test positive for THC
“in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.”

The guidance document also says that nothing in the rule “shall prohibit an
employer from adopting reasonable zero tolerance or drug free workplace
policies, or employment policies concerning drug testing, smoking,
consumption, storage, or use of cannabis in the workplace or while on call
provided that the policy is applied in a nondiscriminatory manner.”

The DOLI guidance notably included a definition of “cannabinoids” that says
the compounds in marijuana “may help treat the symptoms of cancer or the
side effects of cancer treatment.”

The most recent bill that Gov. Glenn Youngkin (R) signed on cannabis and
employment policy, enacted last year, was meant to codify that public
sector workers were also protected from adverse actions by employers, along
with private business employees, unless they fall into a category where
there’s an explicit exception.

Several years before lawmakers passed, and the governor signed, cannabis
consumer workplace protection legislation that inadvertently left out a
section of state code covering firefighters, maintenance workers, teachers
and other public employees.

Meanwhile, after months of hearings and debate, the legislature’s Joint
Commission to Oversee the Transition of the Commonwealth into a Cannabis
Retail Market released a framework for an adult-use marijuana program at
its final meeting on Tuesday.

Since legalizing cannabis possession and home cultivation in 2021, Virginia
lawmakers have worked to establish a commercial marijuana market—only to
have those efforts consistently stalled under Youngkin, who twice vetoed
measures to enact it that were sent to his desk by the legislature.

Once the next legislative session begins in January, the new proposal is
expected to be sponsored by Del. Paul Krizek (D), who has served as chair
of the commission, as well as Sens. Louise Lucas (D) and Aaron Rouse (D).

Rouse said last month that he’s “very optimistic” about the prospect of advancing
legislation to create an adult-use marijuana market in the coming session.
That optimism is heightened by the fact that state Democrats widened their
House majority, and voters elected a pro-legalization governor, in November.

“Any measure that we can take to find revenue, I’m very optimistic about
that approach,” the senator, who has been the lead sponsor of legislation
to legalize and regulate adult-use sales that was vetoed by the outgoing
GOP governor, said.

“We, in Virginia, have to take every step we can to make sure we can find
revenues that strengthen our communities, that strengthens the education
process, that puts food on the table, that gets people back to work,” Rouse
said.


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This next session is shaping up to deliver different results. In addition
to growing their majority in the Assembly, Democrats now have Abigail
Spanberger as the state’s next governor, and the party also secured wins in
the Commonwealth’s lieutenant governor and attorney general races.

Spanberger, a former congresswoman, told Marijuana Moment ahead of the
election that “as Virginia takes steps toward creating a legalized retail
market for cannabis,” the commonwealth “needs a clear strategy to set up a
market that is safe for consumers, transparent for businesses, and fair to
entrepreneurs.”

She added that “revenue from commercial cannabis products must return to
Virginia communities and be reinvested for purposes like strengthening our
public schools.”

The governor-elect said she will “work with leaders in the General Assembly
to find a path forward that both prioritizes public safety and grows
Virginia’s economy”—and that part of that is establishing “a formalized,
legal, emerging cannabis market.”

During her time in Congress, Spanberger voted twice on the House floor in
support of bills to federally legalize marijuana. She also consistently
backed legislation to free up banking services for the
industry, protect all state cannabis program from federal interference
and expand marijuana research. The former congresswoman additionally
opposed a proposal to remove protections for universities that study
cannabis.

She voted against certain reform proposals, however, including on measures
to lift certain research barriers for Schedule I drugs and to revise
federal policy to prevent past marijuana use from being used as a factor to
determine eligibility for a security clearance.

Spanberger cosponsored bills to provide medical cannabis access for
military veterans on two occasions, and she cosponsored the Secure and Fair
Enforcement (SAFE) Banking Act during the 116th Congress.

At the legislative commission’s first meeting in July, members discussing
broad regulatory considerations and other issues related to THC potency,
the hemp market and more. In August, the panel focused on cannabis taxes
and revenue.

Meanwhile, a top Democratic Virginia senator recently said the state should
move forward with legalizing recreational marijuana sales—in part to offset
the Trump administration’s cuts to federal spending in support of states.

*Photo courtesy of Martin Alonso.*

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