Virginia “Bans the Box” (For Certain Offenses)

We have highlighted several new ban the box laws at the local, state, and federal level.  Another month brings a new ban the box law for you to consider.

On May 21, 2020, the Governor of Virginia signed a law that bans the box for certain marijuana-related offenses.

To read the new law, click here.

The new law amends Virginia’s simple marijuana possession statute (Va. Code § 18.2-250.1).  As amended, the simple possession of marijuana in Virginia, while still unlawful without a prescription, is no longer subject to a criminal penalty.  Instead, a person who violates Virginia’s simple marijuana possession law has engaged in a civil offense and is subject to a civil penalty and a fine of no more than $25.  Note that per Virginia law, marijuana possession with the intent to sell, give, or distribute is still a criminal offense. Still, there is a rebuttable presumption in the law that a person who possesses no more than one ounce of marijuana possesses it for personal use.

Because of the changes to Virginia’s simple marijuana possession law, reporting and asking for information regarding this type of offense has also been changed.  According to the new law:

• “Records relating to the arrest, criminal charge, or conviction of a person for a violation of [Virginia’s simple marijuana possession law]… shall not be open for public inspection or otherwise disclosed,” with some exceptions.
• “An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose any information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to [the new law].”
• “An applicant need not, in answer to any question concerning any arrest, criminal charge, or conviction, include a reference to or information concerning any arrest, criminal charge or conviction when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to [the new law].”

Take note, an employer or educational institution that willfully violates the law’s prohibition on asking applicants about certain marijuana-related offenses can be found guilty of a Class 1 misdemeanor for each violation.

The new law is set to take effect on July 1, 2020.  Because violations of this new ban the box law may result in criminal penalties for employers and educational institutions, it may be a good idea to discuss the law with your legal advisor to determine how, or if, this new law might impact you.