Impairment, Not Metabolites: What Two Virginia Firefighter Matters Mean for Public Employers
By Eric Postow, Managing Partner, Holon Law Partners, LLP – Counsel of Record for the cases below.
Virginia Code § 40.1-27.4 applies to the Commonwealth and its political subdivisions. Subject to its express exceptions, the statute prohibits public employers from discharging, disciplining, or discriminating against an employee for the lawful use of cannabis oil under a valid written certification.
The statute also preserves an employer’s authority to address workplace impairment and possession during working hours. The legal issue is therefore not whether a fire department may act when a firefighter is impaired. It may. The issue is whether an employer may treat a positive THC test, standing alone, as proof of workplace impairment and discipline an employee whose cannabis use was lawful, certified, and off duty.
Two recent matters involving Virginia firefighters illustrate the importance of that distinction. One reached the Supreme Court of Virginia on the requirements for a preliminary injunction. The other proceeded through Henrico County’s employee grievance process and resulted in reinstatement with back pay. Together, they provide useful guidance for public employers that regulate medical cannabis use in safety-sensitive positions.
The Statutory Distinction
Section 40.1-27.4 distinguishes workplace impairment from lawful medical use outside the workplace.
Subsection (C) provides that the statute does not restrict an employer’s ability to act based on “work impairment caused by the use of cannabis oil” or to prohibit possession during working hours. Public employers may investigate observed impairment, enforce reasonable safety standards, and prohibit employees from using or possessing cannabis while on duty.
A positive drug test presents a different question. THC metabolites may remain detectable after the substance’s impairing effects have ended. A positive result may establish prior exposure, but it does not, by itself, establish when the substance was used, whether the employee was impaired while working, or whether the employee’s job performance was affected.
When an employee holds a valid written certification and used cannabis oil lawfully while off duty, a positive test may reflect the conduct protected by § 40.1-27.4. A policy that automatically defines any positive THC result as being “under the influence” converts evidence of prior use into conclusive proof of workplace impairment. That approach may be administratively convenient, but it does not track the distinction contained in the statute.
Hanover County v. Morath: The Merits Remain Unresolved
In Hanover County v. Morath, a longtime county firefighter who used certified cannabis products for diagnosed medical conditions tested positive for THC. The county required him to enter into a “Last Chance Agreement.” He later sued, alleging that the county’s drug policy violated § 40.1-27.4, and obtained a preliminary injunction preventing the county from disciplining him for lawful off-duty use.
The Supreme Court of Virginia vacated the preliminary injunction. Its decision did not resolve whether the county’s policy violated § 40.1-27.4.
The Court held that the firefighter had not established irreparable harm, which is required before a court may issue a preliminary injunction. The Court reasoned that an unlawful employment action could be remedied after trial through an action at law. Because an adequate legal remedy remained available, preliminary injunctive relief was not warranted.
That procedural holding is important, but limited. The Court expressly declined to decide the merits of the firefighter’s statutory claim or the county’s defense under the federal Drug-Free Workplace Act, 41 U.S.C. § 8103. It left those issues for the circuit court to address following a full trial on the merits.
Morath therefore should not be read as judicial approval of a policy that automatically equates a positive THC test with impairment. The opinion addresses the standard for preliminary relief, not the lawfulness of the county’s policy. The firefighter’s underlying claim remained available, and the Court treated the alleged employment injury as one that could be remedied after adjudication through damages or other legal relief.
For public employers, the practical point is straightforward. Avoiding a preliminary injunction does not eliminate potential liability. A disputed policy may still be tested at trial, and an employee who proves unlawful discipline may pursue an ordinary legal remedy.
Henrico County: The Employment Record Controls
A separate matter involving a Henrico County firefighter-paramedic reached the merits through the county’s employee grievance process.
The firefighter had a valid medical cannabis certification and used cannabis while off duty. A random drug test returned a positive THC result. There was no allegation that he had used cannabis at work, possessed it during working hours, or performed his duties while impaired.
The firefighter had also disclosed his certification through more than one channel, including to the county’s medical review officer. The medical review officer confirmed the certification’s validity and communicated that information to Human Resources.
The county nevertheless terminated the firefighter, asserting that he had not completed an internal accommodation process. At the Step 4 grievance hearing, the evidence showed that the county had not clearly explained that process, provided a meaningful method for completing it, or consistently administered it. The county’s written policy stated that an interactive process would begin “upon notification,” while assigning the employee the obligation to provide notice without specifying a deadline or clearly identifying additional required steps.
The hearing also addressed the county’s treatment of other medications. Employees who tested positive for prescribed opioids, benzodiazepines, or stimulants could generally verify those prescriptions through the medical review process. Certified cannabis use, however, was treated differently and resulted in termination despite the absence of evidence of workplace impairment.
County witnesses acknowledged that the firefighter’s underlying use was lawful. The record also reflected that he was trusted, respected, and honest, and that the events resulted from a mistake rather than intentional misconduct.
A neutral three-member citizen panel unanimously reversed the termination, reinstated the firefighter with back pay, and reduced the discipline to one day.
The Henrico decision is an employment grievance determination, not statewide judicial precedent. Its significance lies in the factual and administrative analysis. On a developed record, the panel examined whether the employee was actually impaired, whether he provided notice, whether the county followed its own procedures, whether comparable medications were treated consistently, and whether termination was supported by individualized judgment and just cause.
Policies Should Address Impairment, Not Assume It
Public employers do not need to relax workplace safety standards to comply with § 40.1-27.4. They do need policies that distinguish actual workplace risk from evidence of lawful prior use.
A positive THC result may justify further inquiry. It may support a review of the employee’s medical authorization, job duties, timing of use, observed behavior, or ability to perform essential safety functions. It should not automatically establish workplace impairment when no other evidence supports that conclusion.
Policies that define every positive test as being “under the influence” avoid the factual determination the statute requires. They also create a direct path from protected off-duty conduct to adverse employment action.
Medical Verification Should Be Applied Consistently
Public employers commonly use medical review officers to determine whether a positive drug test is explained by a valid prescription or other lawful medical authorization. When that process is available for prescribed opioids, benzodiazepines, stimulants, and similar substances, an employer should have a defensible reason for treating certified medical cannabis differently.
The relevant inquiry is not whether cannabis remains regulated under federal law. The employer must also account for the specific protections adopted by the Virginia General Assembly, the statutory exceptions for impairment and workplace possession, and any federal obligations that actually apply to the employer.
Morath did not resolve the interaction between § 40.1-27.4 and the federal Drug-Free Workplace Act. Public employers should not treat the decision as establishing a general federal-funding exception to Virginia law.
An Internal Process Must Be Clear and Functional
An employer that requires disclosure, accommodation review, fitness-for-duty analysis, or medical verification must communicate those requirements clearly and administer them consistently.
An interactive process cannot exist only in a written policy that employees and supervisors do not understand. If notification triggers the process, the employer must identify who receives the notice, what information is required, what steps follow, and who is responsible for completing them.
An employer is in a weak position when it disciplines an employee for failing to complete a process that the employer never initiated, explained, or made reasonably available. That is particularly true when the employee disclosed the certification to supervisors, Human Resources, or the employer’s medical review officer.
Conclusion
These matters do not establish that every firefighter with a medical cannabis certification is exempt from discipline. Nor do they prevent public employers from enforcing safety rules, investigating impairment, prohibiting on-duty possession, or evaluating whether an employee can safely perform essential job functions.
They establish narrower and more useful principles.
Morath leaves the merits of § 40.1-27.4 claims open and confirms that employees may pursue ordinary legal remedies for unlawful discipline. The Henrico grievance decision shows that a termination may fail when the evidence establishes lawful off-duty use, no workplace impairment, adequate disclosure, inconsistent treatment of medications, and an internal process the employer did not properly administer.
Virginia public employers should base employment decisions on evidence of impairment, workplace possession, actual safety concerns, and compliance with clearly communicated procedures. A positive THC result may begin that analysis. It should not automatically end it.
Eric Postow is Managing Partner of Holon Law Partners, LLP. His practice includes cannabis law, employment matters, and the protection of individual rights. This article is for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship between the author or Holon Law Partners, LLP and any reader. Readers should consult qualified legal counsel before acting on the information contained in this article.
