West Virginia Is 29th State to Legalize Medical Marijuana Use

Author: David B. Weisenfeld, XpertHR Legal Editor

April 28, 2017

West Virginia has become the 29th state to permit medical marijuana use after Governor Jim Justice signed the West Virginia Medical Cannabis Act, which recognizes marijuana as a treatment for patients with terminal illnesses and other specified serious health conditions. Recreational marijuana use remains illegal in West Virginia.

Covered conditions under the Act include:

  • Cancer;
  • Crohn's disease;
  • Epilepsy;
  • Parkinson's disease; and
  • Post-traumatic stress disorder.

The Act will not allow patients to smoke the drug or to grow their own marijuana plants. Under the Act, the state will not begin issuing marijuana patient identification cards to individuals with covered conditions or to their authorized caregivers until July 1, 2019.

The law does not limit an employer's ability to test for drugs, or to maintain a drug-free workplace in any way. The Act also gives an employer the right to restrict a qualifying patient from performing certain tasks. For instance, the Act specifies that a patient may not perform any job duties at heights or in confined spaces (e.g., mining) while under the influence of medical cannabis.

However, the West Virginia law does include an anti-retaliation provision stating that no employer "may discharge, threaten, refuse to hire or otherwise discriminate or retaliate" against an employee based on the employee's status as an individual certified to use medical cannabis.

A flurry of states legalized marijuana use through ballot initiatives last November. In all, eight states plus the District of Columbia permit some form of recreational marijuana use. However, none restrict an employer from disciplining an employee who is impaired at work as a result of using the drug.