Virginia Joins the Ranks
On May 21, Virginia Governor Ralph Northam signed legislation to decriminalize simple marijuana possession. The law also prohibits employers from requiring applicants to disclose information surrounding past criminal charges related to marijuana. When the law goes into effect on July 1, more than half of the country will have laws on the books either fully or partially decriminalizing major cannabis offenses.
Previously in Virginia, first offenses of marijuana possession could be met with fines and/or imprisonment up to 30 days. Subsequent offenses could be charged as Class 1 misdemeanors, punishable by up to one year in jail and/or a fine of up to $2,500.
Virginia’s new law changes the punishment of possession of up to one ounce of marijuana to a fine of no more than $25. Convictions for simple possession will also not be reflected in a person’s criminal record. Individuals whose charges are not pursued or otherwise dismissed, or who are acquitted, are allowed to file a petition requesting police and court records related to the charge to be expunged.
Decriminalization and the Hiring Process
In states where marijuana has been decriminalized or legalized, employers and Consumer Reporting Agencies are also faced with changes to their own practices. In Virginia, for example, records related to prior charges for minor marijuana offenses will generally no longer be open to public inspection or disclosure. Virginia law allows only for narrow exceptions related to law enforcement, but not to hiring practices. However, persons found to have been in possession of marijuana while operating a commercial motor vehicle will have that offense added to their driving records.
Employers, agencies, and educational institutions will be prohibited from requiring applicants to disclose any information related to charges of simple marijuana possession. This ruling includes all aspects of the application, interview, hiring, admission, or licensing processes. Anyone guilty of willfully violating these provisions will also be guilty of a Class 1 misdemeanor for each violation.
Legislation Protecting Employees
Some states have gone further than just decriminalizing marijuana and have passed laws or established policies protecting the rights of employees who use it.
Employers in Pennsylvania cannot fire, threaten, refuse to hire, or otherwise discriminate against an employee based solely on that employee’s certified marijuana use.
Nevada passed a law that became effective on January 1, 2020, prohibiting employers from refusing to hire prospective employees who test positive for marijuana.
Connecticut, New Jersey, and Maine likewise have laws protecting employees who use marijuana.
Employers in states where marijuana has become decriminalized or legal have had to revisit and revise their policies around both marijuana and testing for it. While some employers have adopted zero-tolerance stances, others have relaxed their testing requirements.
Changes for HR
Because cannabis laws can vary between states and countries, anyone involved in background checks, drug testing, or the hiring process needs to stay on top of changes and legal consequences for requesting related information. HR needs continued training, and employee policies should be updated as laws change so that employers can be assured that they are not breaking the law. Companies also need to be aware of what information can and will be revealed in background checks so they know what to expect in those reports and what can no longer be revealed.
Changing state and regional laws and policies in relation to previously-criminalized activity has far-reaching consequences for employers and their relationships with their employees. Policy changes are necessary in order to keep businesses aligned with these updates, and HR is on the front lines for enforcing new practices and procedures in order to continue to keep the hiring and employment processes current.