In mid-April, Virginia Governor Ralph Northam signed VA SB2 into law, which includes an amendment decriminalizing simple possession of marijuana in the state. Under the new law, marijuana possession is still technically illegal; however, possession of an ounce or less of marijuana will no longer carry criminal charges, only a small fine.
Of particular interest to human resources professionals is a provision of the legislation that bars public access to records relating to prior marijuana possession crimes, with very limited exceptions. When the law goes into effect on July 1, employers can no longer ask applicants or employees to disclose these types of arrests or convictions.
ESS General Counsel, Todd Higey, shared his insights:
Virginia's new amendment to its marijuana legislation produces an interesting result: Records of offenses are publicly available, but yet they can’t be considered by employers.
Under the amendment, simple possession is now decriminalized and treated a lot like a traffic offense. Although these marijuana-related civil violations will be maintained by the Virginia State Police in its Central Criminal Records Exchange, the public will not be permitted to obtain information from the state police regarding these offenses. But this overlooks the fact that the CCRE is not the primary repository of criminal and civil records – those are found in county courthouses.
Although it's a bit early to tell, we assume those records will still be available if one visited the local county courthouse. So even though the Virginia legislature took the step of prohibiting employers from asking applicants to disclose the civil offenses, they will still be publicly available. Virginia employers who typically ask applicants to disclose their prior criminal history will want to update their application forms to warn applicants not to disclose marijuana civil offenses. Employers also need to expect that background screening companies will start to filter these marijuana civil offenses from their reports.
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