Virginia’s Medicinal Cannabis Oil Employment Law (MCOEL), VA Code § 40.1-27.4, generally prohibits employers from disciplining employees for engaging in lawful medicinal use of cannabis oil. The law, however, contains several exceptions that allow employers to terminate or otherwise take adverse action against employees whose use of medicinal cannabis causes work impairment or would cause the employer to violate federal law or lose federal funding.
Cannabis Oil Defined
The MCOEL defines “cannabis oil” to mean the same as that term is defined in VA Code § 54.1-3408.3:
“Cannabis oil” means any formulation of processed Cannabis plant extract, which may include oil from industrial hemp extract acquired by a pharmaceutical processor pursuant to § 54.1-3442.6, 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 per dose. “Cannabis oil” does not include industrial hemp, as defined in § 3.2-4112, 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.
VA Code § 54.1-3408.3 (cited by VA Code § 40.1-27.4(A)).
Prohibition on Discipline for Lawful Medical Use
The MCOEL prohibits employers from discharging, disciplining, or discriminating against an employee for lawfully using cannabis oil pursuant to a practitioner’s valid written certification meeting Virginia’s requirements:
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 § 54.1-3408.3.
Exceptions Based on Impairment, Federal Law, Federal Funding, National Security
Importantly, the MCOEL sets out several exceptions to the general prohibition on taking adverse action against an employee for lawfully using medicinal cannabis oil. Specifically, Section C of the MCOEL provides that 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 tetrahydrocannabinol (THC) in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.
Bowman as a Possible Source of Relief
The text of the MCOEL does not provide employees harmed in violation of the law with an explicit statutory right of action against the employer. See VA Code § 40.1-27.4.
However, the MCOEL does appear to state a public policy of the Commonwealth: that subject to the specified exceptions, employers generally should not take adverse action against employees for engaging in the lawful, medicinal use of cannabis oil. Therefore, the MCOEL may under some circumstances provide a basis for claim of wrongful discharge in violation of public policy under Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985) and its progeny.
In general, “Virginia adheres to the employment at-will doctrine, which allows … the employer … to terminate the employment relationship without the need to articulate a reason.” Francis v. Nat’l Accrediting Comm’n of Career Arts & Scis., Inc., 293 Va. 167, 796 S.E.2d 188, 190 (2017) (quotation marks and alterations omitted). In three “narrow” and “limited circumstances” referred to as the “Bowman exceptions,” the Virginia Supreme Court has recognized claims for being fired in violation of public policy. Id. at 190–91. The three exceptions are:
(1) when “an employer violated a policy enabling the exercise of an employee’s statutorily created right”;
(2) when “the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy”; and
(3) when “the discharge was based on the employee’s refusal to engage in a criminal act.”
Id. A plaintiff seeking to assert a Bowman claim must identify a Virginia statute that confers rights or duties upon him. Briggman v. Nexus Servs., No. 5:18-cv-00047, 2018 WL 6517464, at *6 (W.D. Va. Dec. 11, 2018). For more information about Bowman claims, see this post on the topic.
The MCOEL prohibits adverse action against employees for engaging in the lawful medicinal use of cannabis oil, subject to certain exceptions. Thus, it confers a right on employees. Because this Commonwealth policy prohibits discharge or other adverse action against an employee, an argument might be made that an employee terminated in violation of the MCOEL may have recourse via a Bowman claim on the grounds that her termination violated a public policy “explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy.” Francis, 796 S.E.2d at 190. Similarly, an argument might be made that the employer “violated a policy enabling the exercise of an employee’s statutorily created right[.]” Id.
Virginia Whistleblower Protection Law as a Possible Remedy
The Virginia Whistleblower Protection Law, VA Code § 40.1-27.3, may also provide a remedy under limited circumstances. The VWPL provides, inter alia, that an employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment, because the employee:
in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official[.]
VA Code § 40.1-27.3(A)(1). Thus, if an employer terminates or otherwise takes retaliatory action against an employee because the employee in good faith reported to a supervisor or government official that she was experiencing discrimination prohibited by the MCOEL, the employee may assert that she has a claim under the VWPL. For a more in depth look at the VWPL, see this post on that law.
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