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Virginia Adds a "Ban the Box" Law for Pot Possession
Virginia Adds a "Ban the Box" Law for Pot Possession

Ban-the-box restrictions have increased in popularity among U.S. states and localities during the last decade. “Ban the box” refers to laws that variously prohibit or restrict employers from requiring applicants for employment to divulge their criminal history through a check box on an application for employment. The theory behind “ban the box” statutes is that they promote hiring practices that give applicants a fair chance and require employers to judge individual job candidates on their merits, instead of automatically disqualifying those who have a criminal history.

Locally, Virginia, Maryland, the District of Columbia, and a handful of counties, notably Fairfax, in Virginia, and Montgomery and Prince George’s, in Maryland have “ban the box” restrictions. However, those laws are limited solely to public sector or government employees. Only the District of Columbia, Montgomery County and Prince George’s County have passed ban the box statutes that apply to private sector employers. 

On May 21, 2020, Virginia joined those jurisdictions when Governor Ralph Northam signed into law a bill making it unlawful for both private sector employers and educational institutions to require an applicant for employment or admission, respectively, to disclose in an application, interview, or otherwise, information about an arrest, charge or conviction for simple possession of marijuana. The new ban-the-box restriction does not extend to the more serious criminal offenses for distribution of marijuana or intent to distribute.  

The new law also shields from public inspection or disclosure records that are maintained in Virginia’s Central Criminal Records Exchange relating to arrests, criminal charges, or convictions for possession of marijuana, pursuant to Code of Virginia §18.2-250.1, except in certain narrowly defined exceptions, such as to make a determination of eligibility to possess or purchase a firearm. Therefore, employers and educational institutions that utilize third party criminal background checks will no longer have access to information about an applicant’s arrest, charge, or conviction for a violation of Virginia’s restriction on simple possession of marijuana.

Virginia’s ban-the-box law makes it a Class 1 misdemeanor to willfully violate the new statutory restrictions.

The new law goes into effect on July 1, 2020. In the interim, Virginia employers should review their policies and practices to determine whether any adjustments are needed considering the new ban-the-box restrictions. The new law does not mean that Virginia employers will be unable to restrict or prohibit employee use of marijuana as a part of their employee policies and procedures. In her article Marijuana & the Workplace, my colleague Maureen Carr discusses when or under what circumstances Virginia employers can restrict medicinal and recreational use of marijuana by employees.

If you have questions about, or need assistance with, the new law, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.