04/25/2019 by Anne G. Bibeau
The law on marijuana is changing so rapidly that I anticipate this article will be outdated before I finish it. Check back here regularly for updates!
Marijuana remains illegal both federally and in Virginia. Some Virginia jurisdictions are dialing down enforcement of criminal penalties, but they remain on the books.
Since marijuana remains illegal, it cannot be prescribed. Virginia has created an affirmative defense to criminal prosecution for possession of cannabidiol (“CBD”) oil or tetrahydrocannabinol acid (“THC-A oil”) in limited circumstances. In order to invoke the affirmative defense, the person must (1) have a valid, written certification from a Board of Pharmacy-registered physician (and, beginning July 1, 2019, this expands to licensed physician assistants and licensed nurse practitioners), and (2) a current active patient or caregiver (parent or legal guardian of a patient who is a minor or incapacitated adult) registration issued by the Board of Pharmacy. Va. Code § 18.2-250.1(C).
Because it is generally illegal to transport marijuana products over state lines, it appears that Virginians will have to obtain the CBD or THC-A oil, if derived from marijuana, from one of Virginia’s five Board of Pharmacy-licensed pharmaceutical processors, which will not be operational until late 2019. There will be one licensed pharmaceutical processor in each of Virginia’s five Health Service Areas, located in Portsmouth, Richmond, Bristol, Manassas, and Staunton. Those pharmaceutical processors will be permitted to grow, extract, dispense, and deliver medical cannabis oils, all on site. The pharmaceutical processors may only dispense CBD or THC-A oils to patients or caregivers who are Virginia residents and who appear in person.
Virginia’s law does not provide any employment protection for individuals using CBD or THC-A oil. Under Virginia law, then, employers may be permitted to terminate employees for using such products, even if the use complies with Virginia’s medical cannabis program.
CBD and THC-A oil can be produced from either marijuana or hemp. Both are varieties of the Cannabis sativa L. plant; the critical difference between the two is their legal status and their THC (tetrahydrocannabinol – the principle psychoactive component of cannabis) content.
Marijuana remains a Schedule I substance under the federal Controlled Substances Act and is therefore illegal. The federal government, however, has made enforcement a low priority in states that permit marijuana.
Effective January 1, 2019, the federal government has removed hemp from Schedule I of the Controlled Substances Act. As such, hemp is now legal nationwide. Although closely related to marijuana, hemp has significantly lower levels of THC, meaning that it is practically impossible for someone to get “high” from hemp.
It is illegal to market any product—whether derived from hemp, marijuana, or anything else—as having therapeutic benefits or as a dietary supplement unless the FDA has approved it. To date, the FDA has approved only one CBD drug: Epidiolex, for the treatment of certain seizure disorders. In addition, the FDA has approved three drugs (Marinol, Syndros, and Cesamet) containing synthetic forms of THC. The various other “CBD” and “cannabis” products that can be found online and in pharmacies are not approved by the FDA. Currently, those products appear to be unregulated—there is no telling whether they contain any CBD, THC, or anything else derived from marijuana or hemp.
What this Means for Employers
Remember that at-will employment means that you can terminate an employee for any reason or no reason, so long as the reason is not illegal. Because Virginia law provides no employment protection for an employee using cannabis products, an employer is generally permitted to terminate an employee for using them.
Employers need to be mindful, however, of the obligation under the Americans with Disabilities Act (ADA) to provide reasonable accommodations to qualified individuals with disabilities. If an employee is using CBD or THC-A oil because of a disability, the employer may have a duty to provide a reasonable accommodation for the employee’s disability. Whether the employer has any duty to accommodate the employee’s cannabis use is more problematic, however, and will require careful analysis of the medication involved, its legality, and the employee’s job duties.
Employers should have a workplace policy addressing drugs in the workplace, including whether marijuana use is permitted and whether and when employees may be subjected to drug testing. Employers also should have detailed position descriptions, listing each job’s essential functions and physical requirements.
Typical drug tests reveal whether the individual has had THC within the last few weeks. The tests are not good indicators of whether the individual is currently under the influence of THC. Generally, usage of CBD oils may result in a positive drug test for THC. Because hemp has such low THC levels, it is possible that an individual who uses hemp-derived CBD oil might not test positive for THC in a drug test.
Under the current state of Virginia law, in many circumstances it will be legal for an employer to terminate an employee for a positive THC test result, even if the employee claims that the THC resulted from use of medical CBD oil or THC-A oil. Nonetheless, employers should proceed cautiously and request documentation from the employee regarding his or her claimed medical condition and medications before deciding to terminate.
The labor and employment law team at Vandeventer Black LLP can assist employers in evaluating these situations.
About the Author:
Anne Graham Bibeau focuses her practice on Labor & Employment Law, Alternative Dispute Resolution, Commercial & General Litigation, and Tax Litigation. She represents clients before federal and state courts, arbitrators/mediators, and administrative agencies, including the EEOC and NLRB.
She advises clients on sexual harassment, workplace investigations, the Family and Medical Leave Act, disability law, labor relations, and other labor and employment law matters.
She also serves as an employment law arbitrator and is a AAA Employment Arbitrator. For more information, please contact firstname.lastname@example.org.