New Mexico And Virginia Legalize Cannabis For Recreational Use – Mondaq News Alerts

Following closely on the heels of both New York and New Jersey
enacting recreational cannabis laws, New Mexico and Virginia have
enacted their own laws allowing adults to use cannabis for
recreational purposes. Virginia went further by enacting the first
law providing employment protections to individuals using cannabis
oil. Although not immediately effective, New Mexico and Virginia
employers should immediately assess the implications of the laws on
their current policies and drug testing practices.

Virginia’s Cannabis Oil Law

In late March 2021, Virginia amended the state’s medical cannabis
law to prohibit discrimination against lawful users of medical
cannabis oil, which is defined to mean: any formulation of
processed cannabis plant extract, which may include oil from
industrial hemp extract acquired by a pharmaceutical processor
pursuant to state law; or a dilution of the resin of the cannabis
plant that contains at least five milligrams of cannabidiol (CBD)
or tetrahydrocannabinolic acid (THC-A) and no more than 10
milligrams of delta-9-tetrahydrocannabinol (THC) per dose. The term
does not include industrial hemp, as defined in state law, that is
grown, dealt, or processed in compliance with state or federal law,
unless it has been acquired and formulated with cannabis plant
extract by a pharmaceutical processor.

The law, which becomes effective July 1, 2021, states:

• No employer shall discharge, discipline, or discriminate
  against an employee for their lawful use of cannabis oil pursuant
  to a valid written certification issued by a practitioner for the
  treatment or to eliminate the symptoms of the employee’s
  diagnosed condition or disease pursuant to the state’s cannabis
  oil law.
• Notwithstanding this prohibition, the law does not (i) restrict
  an employer’s ability to take any adverse employment action for
  any work impairment caused by the use of cannabis oil or to
  prohibit possession during work hours, (ii) require an employer to
  commit any act that would cause the employer to be in violation of
  federal law or that would result in the loss of a federal contract
  or federal funding, or (iii) 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
  50 ng/ml for a urine test or 10 pg/mg for a hair test.

Virginia Recreational Cannabis Law

Beginning on July 1, 2021, the Virginia Cannabis Control Act (CCA) will
allow those 21 years of age or older to possess up to one ounce of
cannabis and to cultivate up to four cannabis plants per household
for personal use. Retail sales will not begin until January 1,
2024. However, some advocates continue to push for an earlier start
to retail sales, particularly for already-established
dispensaries.

The CCA does not directly address drug-free workplaces, though
it acknowledges that cannabis causes impairment and prohibits
driving while under the influence of cannabis. We have no reason to
doubt that employers can still prohibit cannabis and impairment at
their worksites, but we will monitor developments in that state to
see whether it may issue further guidance in this area.

New Mexico Recreational Cannabis Law

On April 12, 2021, New Mexico Governor Michelle Lujan Grisham
signed the state’s recreational cannabis law. It is effective in
late June 2021. While the law does not provide employment
protections to recreational users, New Mexico employers still must
be mindful of the protections afforded to those using cannabis for
medicinal purposes.

The law states that it does not:

• Prohibit an employer from taking an adverse employment action
  against an employee who is impaired by, possessing, or using
  cannabis at work or during work hours.
• Require an employer to commit any act that would cause it to be
  noncompliant with or in violation of federal law or federal
  regulations or that would result in the loss of a federal contract
  or federal funding.
• Prevent or infringe on an employer’s rights to adopt and
  implement a written zero-tolerance policy regarding cannabis use,
  which may allow for the discipline or termination of an employee on
  the basis of a positive drug test that indicates any amount of THC
  or its metabolites.

The law does not apply to employees who are subject to the
provisions of the Federal Railway Labor Act and should not be
construed to interfere with any collective bargaining agreement
between the employer and a labor organization representing its
employees.

Next Steps for Employers

Employers should monitor developments surrounding these new laws
and stay aware of regulatory developments that further address
impacts the laws may have on workplaces in New Mexico or
Virginia.  Employers also should consider reviewing and
revising their drug and alcohol free workplace policies and
practices to ensure compliance in New Mexico, Virginia and the many
other states with such laws.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.