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West Virginia - Considerations for Marijuana in the Workplace

  • Last Update on April 18, 2023

Medical
Marijuana Law:

Recreational
Marijuana Law:

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Employer Concerns – Significant to Review

  • Under West Virginia’s law, an employer is not required to accommodate use on workplace premises.
  • West Virginia’s medical marijuana law allows the employer to prohibit tasks that could be life-threatening or result in risks to public health or safety while under the influence of marijuana.
  • An employer may not discharge, refuse to hire, or otherwise discriminate solely based on an individual’s status as a certified medical cannabis patient.
  • An employer may discipline an employee for being under the influence of medical cannabis when (West Virginia Code Chapter 16A-15-4(b)(2)) “…the employee’s conduct falls below the standard of care normally accepted for that position.”
  • Employers are not required to take any action that would violate federal law.
  • West Virginia has very complicated drug testing statutes all of which include testing for marijuana. They have a mandatory statute that conflicts with existing case law decisions, they mandate testing for certain industries, and they have unemployment and workers’ compensation laws that contain their own drug testing requirements.

Testing

  • West Virginia has very complicated drug testing statutes. They have a mandatory statute that conflicts with existing case law decisions, they mandate testing for certain industries, and they have unemployment and workers’ compensation laws that contain their own drug testing requirements.

Hiring/Termination

  • An employer may not discharge, refuse to hire, or otherwise discriminate solely based on an individual’s status as a certified medical cannabis patient.

Discipline

  • An employer may discipline an employee for being under the influence of medical cannabis when (West Virginia Code Chapter 16A-15-4(b)(2)) “…the employee’s conduct falls below the standard of care normally accepted for that position.”

Use/Possession

  • Smoking marijuana is prohibited.
  • Allowable forms include pills, oil, gels, creams, ointments, tincture, liquid, dermal patch, medically appropriate forms for vaporization or nebulization, and now as a result of SB 339 and rules adopted by the W.V. Bureau for Public Health dry leaf or plant has been added to the list. Additionally, SB 590 could make edibles legally consumable if it passes as long as those edibles are not attractive and enticing to children (as of March 2021). Currently however, patients can make edibles at home.
  • Consumption is prohibited in any public place and illegal to perform any task under the influence of cannabis which would constitute negligence, such as the operation of any motor vehicle, aircraft, or watercraft.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • A person is guilty of DUI if they operate a vehicle under the influence of marijuana or permit their vehicle to be driven by someone under the influence. Medical marijuana patients may not drive if they are at or over a level of 3 ng/ml THC.
  • West Virginia’s unemployment law prohibits adulteration or manipulation to defraud a drug test or refusing a test by an individual in a safety-sensitive position.
  • An employee who is discharged for gross misconduct, including reporting to work under the influence without a valid prescription or being under the influence or intoxicated at work, trying to cheat a drug test, and more, will be disqualified for unemployment benefits.
  • An injury is not compensable if a blood test administered at the time of the injury was positive for either on or off the job use of a nonprescribed controlled substances as defined in the West Virginia Uniform Controlled Substances Act.
  • Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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