New Mexico, Virginia Are Latest States to Legalize Recreational Marijuana

Author: Emily Scace, XpertHR Legal Editor

April 14, 2021

New Mexico and Virginia have joined the growing list of states to legalize adult use of recreational marijuana.

The New Mexico law, effective June 29, 2021, legalizes possession and recreational use of up to two ounces of marijuana by adults 21 and older. A companion bill provides for the expungement of arrest and conviction records for certain cannabis-related offenses.

Under the law, New Mexico employers retain the right to prohibit impairment or marijuana possession at work or during work hours and to take adverse action against employees who violate these prohibitions. In addition, employers may continue to adopt and implement written zero-tolerance policies regarding their employees' recreational use of cannabis products, including policies that provide for discipline or termination following a positive drug test result for marijuana. Preexisting laws provide some protections against these consequences for users of medical marijuana.

Virginia's Approach

In Virginia, recreational use and possession of up to one ounce of marijuana will be legal for adults 21 and older beginning July 1, 2021.

Virginia's law also provides that many arrest and conviction records for certain marijuana-related offenses will be automatically expunged. Employers are prohibited from asking job applicants to disclose arrests, criminal charges, convictions and civil offenses that have been expunged or are otherwise not open to public inspection, with certain exceptions.

On the medical marijuana front, another recently enacted Virginia law enhances workplace antidiscrimination protections for medical cannabis users. H.B. 1862 prohibits employers from discharging, disciplining or discriminating against an employee for the lawful medical use of cannabis oil unless failing to do so would result in a violation of federal law or the loss of a federal contract or federal funding. However, employers retain the ability to take adverse action for marijuana-related impairment or possession during work hours.

New Mexico and Virginia join 16 other states and the District of Columbia in legalizing recreational marijuana. New York enacted a similar law on March 31.