Virginia’s update on recreational cannabis legislation and recently-imposed medicinal cannabis protections

Bethan Rose Jenkins, Cannabis News Writer/Editorial

House Bill No. 2312 and Senate Bill No. 1406 were both signed into effect by Virginia Governor Ralph Northam on April 21, 2021. As a direct effect of this, recreational cannabis legalization will transpire across the State of Virginia today — July 1, 2021.

The legal framework outlined in Virginia’s cannabis legalization measures allow the recreational use of cannabis by adults aged 21 and above. In addition to this, the measures will legalize the retail and wholesale sale of cannabis, as well as permit home cultivation and personal consumption — a maximum of four plants for personal use.

Cannabis reform efforts in the state have made significant progress in the Commonwealth since Democrats secured a majority in the legislature. Virginia’s legalization movement came to a head in February 2021, when recreational legalization measures were approved by the General Assembly with the prospect of being executed by January 2024.

Amendments to Virginia’s cannabis laws mean less wait for retailers and consumers

Prior to the changes that Virginia’s cannabis laws have undergone – amendments that both chambers of the Virginia General Assembly approved on April 7, 2021 – statutory provisions legalizing the personal cultivation of cannabis by adults, gifting and personal possession – have fast-forwarded the industry’s effective date to July 1, 2021.

Previously, consumers and retailers were in for a tedious wait, with the effective date expected to be imposed on January 2024. However, it should be noted that specific elements of the legislation surrounding cannabis retail sale and wholesale will persist until January 1, 2024. 

Protections for employees’ medical use of medical cannabis oil

Aside from the amendments to Virginia’s cannabis laws stipulating that the industry won’t officially launch until January 1, 2024, lawmakers also want to draw attention to a related measure — House Bill No. 1862. This specific chunk of legislation is targeted towards Virginia employers.

Approved in March 2021, and effective on July 1, 2021, HB 1862 forbids an employer from firing, disciplining, or discriminating against any employee who has lawfully consumed cannabis oil in accordance with a valid written certification from a certified doctor or healthcare practitioner.

As per the terms of Virginia’s new cannabis law, “[c]annabis oil” is interpreted as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor 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.”

It’s important to note that cannabis oil products are dissimilar to the wave of CBD products that are currently being distributed across retail stores. Such products, due to their non-psychoactive effect, can be obtained without a prescription. 

Virginia’s updated cannabis oil law does not:

  • “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”;
  • “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”; and
  • “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 tetrahydrocannabinol (THC) in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.”

On a final note, employers in Virginia must consider medicinal requirements before disciplining based on drug testing. Since the updated law incorporates THC-containing cannabis oil products, employers can no longer discipline an employee for returning a positive test for cannabis. Before doing so, an employer must assess whether or not the positive result is associated with a patient’s medicinal use of cannabis oil.