Labor Law: New Virginia law makes it a crime to inquire about prior convictions for marijuana

Virginia employers are trying to keep up with the influx of changes and updates to the Virginia employment law landscape, including changes to the state’s marijuana laws.

It still remains unlawful for a person to knowingly or intentionally possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act. Such cases can be prosecuted.

However, under a new state law that took effect July 1, a person who possesses marijuana “is subject to a civil penalty of not more than $25.”

Thus, while it is unlawful to possess marijuana, the consequences are only civil offenses, not criminal, which explains the ongoing narrative that marijuana possession has been decriminalized in Virginia.

Because marijuana possession is no longer considered a crime, Virginia lawmakers passed new legislation prohibiting prior marijuana convictions from barring employment. The new law made certain past marijuana convictions undiscoverable and then prohibited employers from asking about anything that is undiscoverable.

Under the new Virginia code, certain prior marijuana conviction records are now under seal, meaning they cannot be open for public inspection or otherwise disclosed, with a few exceptions, such as applications to purchase a firearm.

“An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection,” according to the new law. FULL ARTICLE