Recent changes in Virginia marijuana laws impact job applicants, employees, and employers.  Virginia has decriminalized simple marijuana possession and is seeking to ensure workers are not harmed by past convictions.  To that end and under new laws, employers are forbidden from asking applicants or employees about arrests, charges, or convictions for simple possession of marijuana and cannot take any adverse employment action based on such information. Employers who willfully violate the prohibition can be found guilty of a Class I misdemeanor. Third-party background check services are also forbidden from disclosing these criminal records. Applicants and employees have the right to exclude arrests, criminal charges, and convictions for simple possession when an employer asks about their criminal history. Note that the law does not apply to convictions for distribution of or intent to distribute marijuana.

In a further effort to protect job seekers, the Commonwealth sealed all records related to simple possession in 2020 and began the process of sealing all records related to misdemeanor possession with intent to distribute marijuana in July of 2021. All records of Virginia arrests, charges, and convictions for simple possession and misdemeanor possession with intent will be sealed across all state and private databases by a statutory deadline of July 1, 2025. In addition, the Commonwealth has adopted a process for the automatic expungement of past criminal records for certain marijuana offenses. Meanwhile, people with criminal records involving all other marijuana-related misdemeanors and most marijuana-related felonies may petition a court to seal those records.

In light of these changes, it is important for employers to review their hiring policies to ensure they are in line with the law.  Avoid asking applicants about simple possession offenses in interviews and on applications and adjust more general application and interview questions about criminal convictions to explicitly allow the exclusion of such information. Persons with Virginia marijuana convictions should be aware of their rights, including the right to petition a court to seal records of certain marijuana offenses.  If you are an employer looking to refine your workplace policies, or if you or a family member have been denied employment or educational opportunities because of a marijuana charge, we can help.