Virginia Drug Testing Laws 2024

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Virginia Drug Testing Laws 2024

In 2021, the Virginia Governor signed House Bill 1862 into law to protect medical marijuana patients from the adverse consequences of failing workplace cannabis drug tests. However, the bill does not protect patients from on-duty cannabis use and work impairment. Most employers in Virginia establish drug testing regulations in order to be eligible for the state’s 5% insurance premium discount from insurers. Furthermore, Virginia Code § 2.2-4312 mandates public organizations receiving state contracts above $10,000 to set up drug-free workplace programs. Creating drug-free policies is also mandatory for Virginia employers receiving federal grants and contracts worth $100,000 or more. Counties and cities in Virginia may enact drug-free workplace ordinances similar to state and federal laws.

Virginia has legalized recreational marijuana use for adults aged 21 or older. However, the new law approved in 2021 does not provide workplace protections for non-patients who fail cannabis drug tests. Therefore, employers may fire or suspend recreational cannabis users for positive test results due to off-duty cannabis consumption.

What Kinds of Drug Tests Can Employers Conduct in Virginia?

Workplace drug tests in Virginia typically aim to detect the presence of controlled substances such as opiates, methadone, amphetamines, cocaine, phencyclidine, or cannabis. Employees will need to submit drug testing samples, including urine, blood, hair, and saliva, as stated under the employers' drug testing policies. Note that offering adulterated urine or other fluid samples to manipulate drug screening results is a misdemeanor offense per Code of Virginia § 18.2-251.4. Virginia allows employers to conduct the following types of drug tests on employees:

• Reasonable suspicion/cause drug tests if trained supervisors believe that some employees use drugs while on the job or their performance is affected due to drug use
• Pre-employment test to ensure that prospective workers are free from illegal drug use
• Post-accident drug tests to determine if drug use contributed to a workplace accident
• Periodic or routine drug tests for specific employees, especially those in safety-sensitive positions
• Random drug tests to screen current employees without prior notice. This ensures ongoing compliance with the employer's drug-free workplace policies

Can Employers Do Random Drug Testing in Virginia?

Yes. Employers in Virginia can conduct random drug testing as part of their workplace policies. The Virginia Department of Human Resource Management (DHRM) mandates random drug testing for ferry operators, commercial driver's license holders, and pilots in the state. Random drug testing can lead to discrimination claims, especially if the process is not uniform and fair among employees. To avoid such claims, employers should provide written drug-free workplace policies stating the procedures to employees before conducting the tests. Using computerized systems to select employees randomly will also reduce discrimination claims.

What Happens if You Fail a Drug Test in Virginia for a Job?

In Virginia, employers can punish employees who fail workplace drug tests. Common penalties enforced by most Virginia employers include probation, suspension, or job termination. Employees can also lose some employment benefits for failing cannabis drug tests. In addition, employers may refer employees who test positive for drug tests to substance abuse programs, as stated in their policy handbooks.

Can I Be Fired for Refusing a Drug Test in Virginia?

Virginia employers can fire employees for refusing to participate in workplace drug tests. Consequences for refusing drug tests are usually stipulated in employers' drug-free handbooks provided to employees. Some employers make provisions on ways to dispute job termination caused by refusing drug tests. Employees who feel their jobs were wrongly terminated can contest it by consulting professional attorneys in Virginia. They may also file complaints with the Virginia Office of Employment Dispute Resolution within 300 days of the wrongful termination.

Can You Get Fired for Failing a Drug Test with a Medical Card in Virginia?

No. Virginia's medical cannabis law protects medical marijuana patients who fail workplace drug tests for cannabis. However, employers can fire registered patients for on-duty cannabis use or getting high at work. Note that state laws do not cover federal employees. As such, federal employers located in Virginia can fire medical marijuana patients who test positive for pre-employment or random drug screenings.

Can Employers Conduct Drug Tests on Applicants in Virginia?

Virginia allows employers to conduct drug tests on job applicants. Workplace drug tests may include urinalysis, blood, hair, or saliva tests during the interviewing stage. Employers may refuse to hire applicants who fail drug tests. However, copies of an employer's drug-free workplace policies must be made available to job applicants during regular business hours, and the candidates must be notified of the possibility of requesting them to submit to drug tests.

Is Pre-Employment Drug Testing Allowed in Virginia?

Employers in Virginia can conduct drug tests on individuals who have received job offers. Virginia pre-employment drug testing laws vary among employers, and applicants should be aware of employers’ drug testing policies during hiring. Some employers conduct drug tests on new hires only after reasonable suspicion, while others request drug tests on all employees before starting work.

Does Virginia Allow Public Agencies to Submit Employees to Workplace Drug Tests?

Yes. Public agencies in Virginia are required to enforce drug testing policies in line with the DHRM Drug Policy. The policy exempts private and federal employees, who may create their own drug-free workplace programs.

Can Employers Choose to Create Drug-Free Workplace Policies?

There is no drug-free workplace law in Virginia. However, the state does not prohibit employers from establishing drug-free workplace policies that align with the following state's workplace drug-related laws:

• Employers must not discharge registered medical marijuana patients for failing cannabis drug tests
• They must not deny employment or rescind offers from medical marijuana patients due to positive cannabis test results
• Employees hired for safety-sensitive job roles must undergo random drug tests
• Employers must provide comprehensive drug-free workplace handbooks to employees or job applicants before carrying out any tests
• Drug test procedures must be fair and impartial to avoid employment disputes
• Employers should maintain confidentiality regarding drug test results, adhering to privacy laws and protecting employees' sensitive information
• Disciplinary actions or termination due to drug test results must comply with established company policies and state employment laws

Employees Exempted From Virginia Workplace Drug Testing Laws

Federal workers are generally exempted from Virginia's drug testing laws. Drug testing policies within federal agencies vary based on their specific jurisdiction. Also, employers in Virginia who receive federal contracts and grants are not required to make drug-free regulations that align with state laws. Note that employees in safety-sensitive positions in the state, such as commercial truck drivers, aviation personnel, and law enforcers, may need to undergo mandatory drug testing required by federal regulations.

What are the Requirements for Drug Testing Labs in Virginia?

Virginia has no legal requirements regarding labs employers must engage to conduct workplace drug tests. However, employers are advised to use the services of drug testing laboratories certified by the Substance Abuse and Mental Health Services Administration (SAMHSA). SAMHSA-certified laboratories in Virginia typically comply with the following strict drug testing guidelines:

• They follow standardized protocols for collecting, handling, and analyzing specimens to ensure accuracy and reliability in drug testing
• They have licensed medical review officers
• They perform continuous quality control checks and proficiency testing
• They have security measures in place to prevent specimen adulteration and manipulation of drug test results
• They maintain strict confidentiality protocols to protect employees' privacy regarding drug test results