Marijuana Moment: Virginia Officials Publish Guidance On Marijuana Consumers’ Workplace Rights

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As Virginia lawmakers prepare to resume efforts to legalize adult-use marijuana sales in next year’s legislative session, state officials have released guidance on a recently enacted law that provides employment protections for workers who use cannabis while off duty.

Virginia has a medical cannabis program—and recreational use and personal cultivation were legalized in 2021, but there’s not currently a system of regulated sales for recreational use. While legislators have already taken steps to enact further reforms to allow marijuana sales from licensed retailers, with a legislative commission putting forward a framework last week in hopes of advancing the issue in 2026, the Department of Labor and Industry (DOLI) published a new document outlining workplace protections for cannabis consumers.

The guidance states that employers “should not take employment actions, including discipline or termination of employment, against an employee based upon the presence of cannabinoid metabolites in the individual’s bodily fluids in an employer-required or requested drug test without additional factors indicating impairment…unless the employer has established a drug free workplace based on its reasonable workplace drug policy.”

For medical cannabis patients specifically, the guidance from DOLI’s Virginia Occupational Safety and Health program stipulates that no employers may “discharge, discipline, or discriminate against an employee for such employee’s lawful use of cannabis oil under the laws of the Commonwealth 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.”

There are exceptions built into the rule, which is being implemented in response to the enactment of bills signed into law in recent sessions.

Impairment during work hours would not be protected, and employers could not be required to do anything that would cause them to be “in violation of federal law or that would result in the loss of a federal contract or federal funding.” Additionally, defense industrial base sector employers could still take adverse action against workers who test positive for THC “in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.”

The guidance document also says that nothing in the rule “shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.”

The DOLI guidance notably included a definition of “cannabinoids” that says the compounds in marijuana “may help treat the symptoms of cancer or the side effects of cancer treatment.”

The most recent bill that Gov. Glenn Youngkin (R) signed on cannabis and employment policy, enacted last year, was meant to codify that public sector workers were also protected from adverse actions by employers, along with private business employees, unless they fall into a category where there’s an explicit exception.

Several years before lawmakers passed, and the governor signed, cannabis consumer workplace protection legislation that inadvertently left out a section of state code covering firefighters, maintenance workers, teachers and other public employees.

Meanwhile, after months of hearings and debate, the legislature’s Joint Commission to Oversee the Transition of the Commonwealth into a Cannabis Retail Market released a framework for an adult-use marijuana program at its final meeting on Tuesday.

Since legalizing cannabis possession and home cultivation in 2021, Virginia lawmakers have worked to establish a commercial marijuana market—only to have those efforts consistently stalled under Youngkin, who twice vetoed measures to enact it that were sent to his desk by the legislature.

Once the next legislative session begins in January, the new proposal is expected to be sponsored by Del. Paul Krizek (D), who has served as chair of the commission, as well as Sens. Louise Lucas (D) and Aaron Rouse (D).

Rouse said last month that he’s “very optimistic” about the prospect of advancing legislation to create an adult-use marijuana market in the coming session. That optimism is heightened by the fact that state Democrats widened their House majority, and voters elected a pro-legalization governor, in November.

“Any measure that we can take to find revenue, I’m very optimistic about that approach,” the senator, who has been the lead sponsor of legislation to legalize and regulate adult-use sales that was vetoed by the outgoing GOP governor, said.

“We, in Virginia, have to take every step we can to make sure we can find revenues that strengthen our communities, that strengthens the education process, that puts food on the table, that gets people back to work,” Rouse said.

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This next session is shaping up to deliver different results. In addition to growing their majority in the Assembly, Democrats now have Abigail Spanberger as the state’s next governor, and the party also secured wins in the Commonwealth’s lieutenant governor and attorney general races.

Spanberger, a former congresswoman, told Marijuana Moment ahead of the election that “as Virginia takes steps toward creating a legalized retail market for cannabis,” the commonwealth “needs a clear strategy to set up a market that is safe for consumers, transparent for businesses, and fair to entrepreneurs.”

She added that “revenue from commercial cannabis products must return to Virginia communities and be reinvested for purposes like strengthening our public schools.”

The governor-elect said she will “work with leaders in the General Assembly to find a path forward that both prioritizes public safety and grows Virginia’s economy”—and that part of that is establishing “a formalized, legal, emerging cannabis market.”

During her time in Congress, Spanberger voted twice on the House floor in support of bills to federally legalize marijuana. She also consistently backed legislation to free up banking services for the industry, protect all state cannabis program from federal interference and expand marijuana research. The former congresswoman additionally opposed a proposal to remove protections for universities that study cannabis.

She voted against certain reform proposals, however, including on measures to lift certain research barriers for Schedule I drugs and to revise federal policy to prevent past marijuana use from being used as a factor to determine eligibility for a security clearance.

Spanberger cosponsored bills to provide medical cannabis access for military veterans on two occasions, and she cosponsored the Secure and Fair Enforcement (SAFE) Banking Act during the 116th Congress.

At the legislative commission’s first meeting in July, members discussing broad regulatory considerations and other issues related to THC potency, the hemp market and more. In August, the panel focused on cannabis taxes and revenue.

Meanwhile, a top Democratic Virginia senator recently said the state should move forward with legalizing recreational marijuana sales—in part to offset the Trump administration’s cuts to federal spending in support of states.

Photo courtesy of Martin Alonso.

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