Under federal law, however, current illegal drug use exempts an individual from coverage under the Americans with Disabilities Act. That’s because marijuana is illegal under federal law.
Employers also will have to grapple with how to address an employee who tests positive for marijuana during an employer’s drug screening.
Virginia lawmakers partially weighed into this question during the 2021 session when it passed a law on disciplining of an employee using cannabis oil for medicinal purposes.
That cannabis oil law, which also takes effect on July 1, states, “No employer shall discharge, discipline, or discriminate against an employee for such employee’s 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 existing certification for use of cannabis oil for treatment described in the cannabis oil law.
Cannabis oil is narrowly defined in that law, and expressly excludes certain industrial hemp “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.”
This will be extremely confusing for employers, making it difficult for employers to know how to comply with the new state law that legalizes recreational marijuana possession.