Employment attorney discusses drug testing in a cannabis-legal state

Updated: Apr. 29, 2021 at 5:43 PM EDT
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RICHMOND, Va. (WWBT) - Virginia is still months away from marijuana legalization going into effect, but some are asking what this could mean for drug testing.

Employment attorney, Todd Leeson, says there are some factors employers should look at when making adjustments to their drug policies, pointing out that the law, which will allow use and possession, shouldn’t interfere with a company’s ability to drug test.

“The question that employers need to consider is “should they continue to drug test?” Leeson said.

He says that most companies already have policies in place that prohibit the possession or using cannabis on the job. He draws parallels with alcohol: while it is legal, people are not usually allowed to use it in the workplace.

“Just because something is lawful, does not mean that an employer has to allow somebody to work when they might pose a safety risk,” Leeson said.

His firm, Gentry Locke Consulting, has studied how other states handle legalization, adding that some states bar employers from inquiring about marijuana use and passed laws that stop termination based on what employees do off-the-clock.

But he adds that it does get tricky, for example, if an employee were to post something offensive on social media.

“Employers can and do fire employees for inflammatory social media posts. So where do you draw the line? It’s a slippery slope when you start to say ‘well, an employer can’t fire somebody for this but they could for that,’” Leeson said.

With Virginia being an at-will employment state, figuring out what is and isn’t acceptable would take lots of legal work.

Steps are already being taken in the state to monitor the marijuana market in the form of the five-person Cannabis Control Board. They will oversee enforcement of the laws, which among other things, legalizes simple possession and allows people to grow up to four cannabis plants at home starting July 1.

“We know that use is going to become more common. Are we really going to deny employment to this person who engaged in the lawful use of cannabis?” Leeson said.

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