In the second report of our series on cannabis in Virginia, WMRA’s Sara Prince looks at how some medical cannabis patients are being protected in the workplace.
Navigating workplace legalities as a medical cannabis patient got easier in 2024, when State Delegate Dan Helmer introduced a bill to expand protections for Virginia employees.
DAN HELMER: So, in Virginia, if you are an employee in a position that doesn't require a national security background check, if a clinician prescribes you marijuana, and you're not impaired at work, you cannot be fired for the use of marijuana and its derivatives in the commonwealth of Virginia.
There are exceptions. Some employers with federal contracts, including those in the areas of defense, law enforcement, and the shipbuilding industries need to adhere to the requirements in those contracts, which can include a ban on cannabis use. But for other Virginia employees, Helmer’s 2024 law is good news. However, there’s yet another catch, as explained by JM Pedini, development director for the National Organization for the Reform of Marijuana Laws and executive director of the state affiliate chapter.
JM PEDINI: The law as written does not restrict an employer's ability to take adverse employment action against an employee who is impaired at work because of medical cannabis.
HELMER: My hypothesis is that the law would allow them to prevent you from using at work, or having it in the office. But just because you test positive for a biological marker, wouldn't allow you to be fired.
And that’s the key – if you are tested for cannabis use. So long as you aren’t considered impaired at work. But, there are still no tests for intoxication that scientists agree on.
HELMER: There's no accepted biological tests to indicate impairment, so nothing akin to a blood alcohol level for use of alcohol. But, of course, functional impairment is something that an employer can make a decision on. So, if you are acting in ways that demonstrate irresponsibility in handling equipment or completing your work, and that is tied to the use of a cannabis product, then your employer could fire you.
But JM Pedini adds that medical cannabis patients in the state are adequately protected at both private and public jobs. Still, Pedini acknowledges that some Virginia employees will miss out on the protections.
PEDINI: The exemptions are very specific and limited to law enforcement officers and to defense, and industrial-based sector employers who are subject to certain federal laws per their contracts with the federal government.
Medical cannabis providers who are advanced practice clinicians are protected, if they are licensed to practice in the state. And in turn, that helps medical cannabis patients.
HELMER: If your clinician follows the process laid out in Virginia law to give you access to medical cannabis products, and you are not impaired, then you cannot be fired just for the fact that you were using something that your clinician has given you the recommendation to do.
The line between legal and illegal use of medical marijuana in the workplace gets blurry when you start talking about Virginia healthcare and education employers – such as Sentara or the University of Virginia.
Both declined to discuss their stance on employees’ certified use of medical grade cannabis, but UVa stated they provide no accommodations to allow cannabis use – even for employees who have medical marijuana cards and receive marijuana from a state-regulated dispensary. Both cite cannabis as federally illegal as a Schedule 1 drug, and reference the Drug-Free Workplace Act, which, according to the Department of Labor, requires workplaces with federal contracts of more than $100,000 to implement a drug-free environment.
Trent Woloveck is the chief strategy director for Jushi Holdings, which runs several regulated cannabis dispensaries in Virginia. He says employers such as Sentara and UVa are in a unique position.
TRENT WOLOVECK: You know, nearly all educational and medical institutions are beneficiaries of federal funding. So, they typically fall within an exception to the general rule, protecting certified patients from adverse employment actions. But this isn't to say that certified patients can't enjoy careers at an institution that receives federal funds. But it may mean that they cannot work on federally funded projects, perform certain duties, or access certain materials or facilities at said university or medical institutions.
You can find a more detailed explanation of how the law protects you as an employee in Virginia in the full text of the 2024 bill sponsored by Helmer and other state legislators.
