• Tina Maiolo and Colin Neal

The “Cans” and “Cants” of Cannabis Testing

What Commonwealth of Virginia Employers and Employees Need to Know

Effective July 1, 2021, Virginia joined 18 other states (and the District of Columbia) in legalizing recreational marijuana for adults over the age of 21. Under its new scheme, Virginia permits adults to possess up to one ounce of marijuana, or an equivalent amount of a marijuana product.[1] However, while the law greatly loosens individual freedom to have and use marijuana recreationally, employers still retain a breadth of authority in testing employees for marijuana use and taking disciplinary action for positive tests. Passed contemporaneously with the statute legalizing recreational marijuana, Va. Code §40.1-27.4(A) established workplace protections for employees who, during their personal time, use cannabis oil prescribed as treatment for a diagnosed condition or disease. The law contains three major carve outs for on-the-job cannabis oil impairments or possession, federal contractors, and defense sector employees, each of which are discussed in detail below.


Medical Cannabis Oil Users are Protected from Marijuana Drug Testing

The new drug testing protections greatly broadened the safeguards for employees who use cannabis oil pursuant to a valid medical certification. Virginia law defines cannabis oil—commonly known as CBD oil—as a cannabis plant extract containing industrial hemp extract or cannabis plant resin dilution with at least five milligrams of CBD or THC-A and no more than 10 milligrams of THC.[2] Cannabis oil differs from leafy marijuana in that is far lower in the psychoactive chemical of marijuana (THC) associated with a traditional “high.”


Va. Code §554.1-3408 permits practitioners to issue certifications for cannabis oil for “any diagnosed condition or disease determined by the practitioner to benefit from such use.”[3] This law is a great departure from the former medical marijuana scheme in the Commonwealth, which was restricted only to treat the symptoms of intractable epilepsy.[4] Practitioners are now provided a breadth of discretion to determine whether a particular patient with a particular medical condition or disease will benefit from the medical use of cannabis oil. Furthermore, the law protects the prescription of botanical cannabis to minors where such administration is consistent with the medical standard of care.[5] So, though the legalization of recreational marijuana is limited to adults over the age of 21, the protection from discipline resulting from a positive drug test extends to all employees with valid cannabis oil prescriptions, regardless of age.


Exceptions to the Medical Cannabis Oil Drug Testing Protections

A. Cannabis Oil Possession or Use On-The-Job

The protections prescribed cannabis oil users are now afforded from adverse employment action related to their cannabis oil use are not absolute. Employers may still drug test and seek disciplinary action where cannabis oil users (a) have a workplace impairment resulting from the use of cannabis oil or (b) possess cannabis oil at work. Notably, the law does not clearly define the scope of “impairment.” Employers should be advised to set out a clear policy for what constitutes impairment, as a dispute over whether a cannabis oil prescribed employee was “impaired” for the purposes of §40.1-27.4 could result in a legal battle. For example, Amazon, a major employer in the Commonwealth, has committed to continuing its policy of “impairment checks” by drug and alcohol testing after workplace incidents.[6]

The exception for the possession of cannabis oil at work is more straightforward; employers who discover that an employee with a valid prescription for cannabis oil has that product in the workplace is well within its rights to drug test and discipline that employee.


B. Federal Contractors

Through providing broad protections for medically certified cannabis oil users, the employee discipline prohibition does not “require an employer to commit any act that would cause the employee to be in violation of federal law or that would result in the loss of a federal contract or federal funding…” This carve out is notable: under the Drug Enforcement Administration’s interpretation of the Controlled Substances Act marijuana and its derivatives remain Schedule I drugs.[7] This includes cannabis oil, with the exception of the anti-epilepsy drug Epidiolex.[8] So, employees with valid cannabis oil medical certification are not protected from discipline under Virginia law if their employer is a federal contractor.


This exception is carved out in a manner that allows Virginia employers to remain in compliance with the Federal Drug Free Workplace Act 41 U.S.C. §8102, specifically the provision prohibiting federal agencies from contracting with individuals who engage in the possession nor use of a controlled substance while performing the contract.[9] Though employers are given discretion to cease drug testing for all forms of marijuana products, this exception provides a legal safe harbor for employers with federal contracts from claims of discrimination by marijuana and cannabis oil users. As recently as September 2013, the Mercatus Center at George Mason University determined that, compared to other states, Virginians are disproportionately employed by federal contract, estimating that 10% of Virginia’s workforce was indirectly employed by the federal government.[10] As such, this carve-out has a massive effect on the labor market in the Commonwealth.


C. Defense Sector

The third exception under the new marijuana scheme for employment discipline specifies that the law does not “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 50ng/ml for a urine test or 10pg/mp for a hair test.” While the legal prescription of cannabis oil under Virginia law mandates the product have less than 10 mg of THC, medical cannabis oil users can still test positive for THC in excess of the limits for defense industry sector employees,[11] and thus would be liable to suffer employment discipline notwithstanding their valid prescription. Employers in this sector should be aware that employees with cannabis oil prescriptions may not understand that they can still test positive for unprotected levels of THC and inform their employees as such. Importantly, there can be overlap between federal contractors and the defense sector, so the broader federal contracts exception may also apply to employees working in defense.


Lingering Questions for Employees and Employers

A. What about recreational marijuana use?

Employers retain discretion as whether to test employees for recreational marijuana use and take disciplinary action following a positive test. Employees should apprise themselves of their employer’s drug policy before deciding whether to try legal recreational marijuana.


B. Can an employer drug test a prospective employee before hiring them?

Yes. The new employment protection scheme applies to “employees” specifically and does not mention applicants. Therefore, it follows that employers may test any job applicant and decide not to go forward with the application if their drug test is positive, even if the applicant claims that it results from the legal use of cannabis oil.


C. How do I tell from a drug test if an employee is using leafy marijuana or cannabis oil?

In short, you most likely cannot. As stated above, CBD products contain trace amounts of THC, which can cause positive drug tests even without the consumption of leafy marijuana. Standard urine screen does not differentiate between cannabis oil and leafy marijuana use.[12]


D. How do I know if an employee is impaired with cannabis oil or marijuana at work?

There is no quick and determinative means of discovering whether an employee is impaired by cannabis oil or marijuana at work; unlike a breathalyzer for alcohol, there is no rapid test for marijuana intoxication.[13] Standard tells of marijuana intoxication include red eyes, odor of marijuana, drowsiness, euphoria, dry mouth, and increased appetite. Though symptoms of CBD intoxication are less intense and observable, an employee intoxicated by cannabis oil may be experiencing dry mouth, drowsiness, or fatigue. As stated above, employers should consider standardizing their post-incident alcohol and drug testing to ensure a consistent and non-discriminatory policy.


E. My employee has a valid medical cannabis oil certification, can I still drug test them?

Employees with valid certification for cannabis oil may still be drug tested. However, the Virginians with Disabilities Act would require those employees to disclose if they have certification for medical use of cannabis oil when they require a workplace accommodation, such as exemption from discipline following a positive drug test.[14] Unless one of the three exceptions applies, employers may not take adverse employment action against an employee with a valid cannabis oil certification on the basis of a positive marijuana test.

_______________________________________________________________ [1] Va. Code 4.1-1100(A) [2] Va. Code 54.1-3408.3(A) [3] Va. Code 54.1-3408.3(B). [4] HB 1251, SB 726 (2018) [5] Va. Code 54.1-3408.3(B) [6] John Reid Blackwell, New marijuana law in Virginia means some employers may change their drug testing policies as an employment condition, Richmond Times-Dispatch (Jul. 23, 2021). https://richmond.com/business/local/new-marijuana-law-in-virginia-means-some-employers-may-change-their-drug-testing-policies-as/article_fd526df1-3af6-5d50-b449-b5ea49763592.html [7] Drug Enforcement Administration, Drug Scheduling, DEA (last accessed September 24, 2021) https://www.dea.gov/drug-information/drug-scheduling [8] 21 C.F.R. 1308 (2018); 21 C.F.R. 1312 (2018). [9] 41 U.S.C. § 8102(a)(1)(G). [10] Keith Hall & Robert Greene, A Tale of Two Labor Markets: Government Spending’s Impact on Virginia, Mercatus Center (September 20, 2013). https://www.mercatus.org/publications/government-spending/tale-two-labor-markets-government-spendings-impact-virginia [11] Danielle Kosecki, Why using CBD might make you fail a drug test, CNET (Sept. 13, 2021) https://www.cnet.com/health/nutrition/can-cbd-make-you-fail-a-drug-test/ [12] Jackie DeFusco, Virginians can still be fired for using recreational marijuana; Medical use protections take effect July 1, ABC8News (June 29, 2021) https://www.wric.com/news/virginians-can-still-be-fired-for-using-recreational-marijuana-medical-use-protections-take-effect-july-1/ [13] Id. [14] VA Code 51.5-41.