On April 19, 2017, West Virginia Governor Jim Justice signed a bill legalizing the use of marijuana for medicinal purposes.  With the passage of Senate Bill 386, West Virginia becomes the 29th state to adopt a medical marijuana law.

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Employers need not panic.  This does not mean you have to ignore your employee toking in the bathroom or ignore a positive drug test simply because the employee has a medical marijuana card.

The law does contain a broad anti-discrimination provision prohibiting an employer from taking an adverse action against an employee solely because that person possesses a medical marijuana card.  However, the law specifically says that no employer must make an accommodation for the use of medical marijuana in the workplace and employees can be disciplined for being under the influence of marijuana at work.

The law also makes it illegal for any patient to operate or be in physical control of any of the following:

  • chemicals which require a permit from a state or the federal government;
  • high-voltage electricity or any other public utility; or
  • vehicle, aircraft, train, boat or heavy machinery

The law also states that a patient may not perform employment duties at heights or in confined spaces, including mining, while under the influence of marijuana.  In furtherance of addressing safety concerns, the law specifically states that employers may prohibit an employee from performing any task while under the influence of marijuana which the employer deems life-threatening to either the employee or other employees.  Employers may also prohibit employees from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.

Employers in West Virginia should update drug policies to address the new law.  No person will be issued a card until July 2019 so you have some time, but like with all things, while it is fresh in your minds it is a good idea to have counsel review and revise your policies.