I suspect one of my employees is coming to work under the influence of alcohol or using drugs at work. What can I do?
Vermont’s drug testing law does not prevent employers from investigating or addressing potential workplace misconduct or safety issues relating to drug and alcohol use in the same way they would investigate other workplace issues. Instead, the law applies only if the employer is thinking about requiring an employee or job applicant to undergo a drug test.
Vermont law allows employers to test current employees for alcohol or drugs only in very limited circumstances, where the employer has in place a detailed and specific set of protocols and procedures.
What are the “very limited circumstances” in which I can drug test my employees?
Drug testing requirements are rigorous and prescribed by law because a policy of drug testing employees is serious. The criteria is summarized as follows:
- The employer has “probable cause” to believe an employee is using or is under the influence while at work; AND
- It can provide a bona fide rehab program for the employee; AND
- It follows detailed and specific procedural and medical requirements [1] for drug testing, such as using only a State-approved laboratory, limiting the scope of the test, and notifying the employee of their legal rights, such as medical privacy and the ability to seek a re-test if desired; AND
- It cannot fire an employee who tests positive for the first time — if the employee agrees to participate in and to complete successfully the employer-provided rehab program, the employer can place the employee on unpaid leave, but only for the time needed to complete rehab, up to three months.
If, after the employee completes the rehab program, the employer has probable cause to believe that the employee is again using or under the influence at work, the employer may require a new drug test, subject to the above procedures. Then, if an employee tests positive, the employer has the right (but not the obligation) to fire the employee.
[1] These requirements are very detailed, and include: (a) the specific drugs to be tested, (b) A written policy already in effect that complies with the statute, (c) no blood sample, (d) a designated laboratory approved by the Department of Health; (e) a chain of custody procedure; (f) a urinalysis procedure that complies with the statutory requirements; (g) a laboratory as to a positive test that requires both an initial test and a confirmation test pursuant to statute, (h) detection of a drug at a therapeutic level as defined by the Commissioner of Health shall be reported as a negative test result; (i) a written report that follows specific protocols, including that the medical review officer review the report, and discuss the results and options available with the individual tested. The written report must include six items required by statute. See 21 V.S.A. § 514.
Here is the complete drug testing statute (see Subchapter 11).
What is “probable cause”?
In the context of the drug testing law, “probable cause” exists when the circumstance would lead an employer of rational caution to conclude that an employee is using or under the influence of substances while at work. Probable cause often includes a combination of signs, such as: stumbling, slurring of speech, odors of alcohol or other substances, or actually observing someone use in the workplace. Probable cause varies depending on the specific circumstances.
I’ve read about “reasonable suspicion drug testing.” Is that the same as “probable cause?”
No. “Reasonable suspicion” is a lower standard of proof and would not justify drug testing Vermont employees. Just as the police need probable cause to obtain a search warrant for a residence, employers need probable cause to obtain a drug test.
Can I drug test employees simply because they’ve had a workplace accident?
No. Employers still would need probable cause that the employee was using or under the influence on the job. The mere fact of an accident — which can happen for many reasons — isn’t enough.
Do the same rules apply to job applicants?
Some of the same rules apply, some don’t. Employers do not need probable cause to test job applicants nor do they need to offer them rehab. Employers do need to hold off on drug or alcohol testing until a job offer has been made and employment is conditioned on passing the test.
If employers decide to go that route, they still have to follow the same strict protocols for testing notice and procedures that apply to employees [1].
With regard to possible criminal history of applicants, we recommend employers also check out our plain language guidance on the “Ban the Box” statute.
[1] These requirements are very detailed, and include: (a) the specific drugs to be tested, (b) A written policy already in effect that complies with the statute, (c) no blood sample, (d) a designated laboratory approved by the Department of Health; (e) a chain of custody procedure; (f) a urinalysis procedure that complies with the statutory requirements; (g) a laboratory as to a positive test that requires both an initial test and a confirmation test pursuant to statute, (h) detection of a drug at a therapeutic level as defined by the Commissioner of Health shall be reported as a negative test result; (i) a written report that follows specific protocols, including that the medical review officer review the report, and discuss the results and options available with the individual tested. The written report must include six items required by statute. See 21 V.S.A. § 514.
Here is the complete drug testing statute (see Subchapter 11).
What kind of drug testing is allowed?
Currently, Vermont permits only testing by urinalysis. The drug testing law specifically prohibits blood testing. It also permits testing only by labs approved by the Vermont Department of Health. Currently, the Department certifies these labs only with respect to urinalysis. Thus, other forms of testing, such as saliva or cheek swab testing, are not permitted.
Have Vermont’s employer drug testing laws changed now that recreational marijuana is legalized as of July 1, 2018?
The new marijuana law does not change Vermont’s drug testing laws. For more information check out our guidance aimed at assisting employers in navigating Vermont’s new recreational marijuana laws.
Does the new recreational marijuana use law address the workplace otherwise?
Yes, the new law (Vermont Act 86) contains several provisions expressly preserving certain employer rights. For example, it specifically states the following:
- Does not require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace;
- Does not prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
- Does not create a legal cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or
- Does not prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana on the employer’s premises.
I’ve taken all the steps to conduct lawful pre-employment drug testing for my new hires. What happens if I become aware that one of these applicants is a medical marijuana card holder?
Employers should respect an applicant’s privacy and proceed with caution! Vermont issues medical marijuana cards only to individuals who need to treat a “debilitating medical condition” — a term that includes many legally-protected disabilities, such as cancer, glaucoma, or post-traumatic stress disorder. Because disability discrimination is unlawful, employers must ensure their decision-making isn’t affected by biased assumptions about a person’s known or suspected disabilities. (Remember: it’s illegal to discriminate against someone because one thinks they’re disabled — even if they aren’t actually disabled.)
Because each hiring decision is fact-specific and the consequences of disability discrimination are serious, employers with legal questions should consult with an attorney.
Remember also that a medical marijuana card does not entitle anyone to use or bring marijuana to the job or work under the influence.
My employee tested positive. I understand I need to provide rehab, but do I have to pay for it?
Yes. If employees are drug tested, the law requires a bona fide rehab program and the opportunity for an employee to attend if they test positive during an employee drug test.
An employer may offer a bona fide rehab program via an Employee Assistance Program (“EAP”), under an employee health insurance policy, or employer contract with a local hospital.
Do I have to pay for an employee’s time off for rehab?
The drug testing law itself does not require the employer to provide paid leave. However, in some cases, employees may have the right to apply already-earned paid leave benefits to the rehab leave. For example, Vermont’s Parental and Family Leave Act and the federal Family and Medical Leave Act grant employees the right to apply accrued paid leave to their absence. In addition, Vermont’s earned sick time law may allow employees on rehab leave to receive sick pay for the leave. Because these laws have different and overlapping eligibility and requirements, employers should speak to legal counsel about paid leave entitlements.
I obviously can’t have my staff under the influence on the job. Can I randomly drug test my staff?
Not unless a federal law or regulation requires random drug testing. Vermont law not only generally prohibits employers from requiring random testing, it also prohibits employers from requesting employees if they would voluntarily participate in a random drug testing program. Thus, for example, an employer not subject to federal drug testing requirements could not include a random drug testing program in a collective bargaining agreement even if employees approved the contract.
But remember– even though random drug testing is prohibited, employers can maintain a policy against drug and alcohol use in the workplace and discipline employees for violations of that policy, just as an employer would discipline for other workplace misconduct.
If I can’t randomly test, can I schedule an annual test for all employees?
Unless federal law requires such testing, Vermont employers cannot request, require, or conduct company-wide testing.
Are there exceptions to the prohibition on random drug testing?
Yes. As mentioned above, in limited circumstances, random drug testing may be required by federal law or regulation. For example, certain federal motor carrier safety regulations may require certain drivers to undergo periodic physical testing that may include drug tests.
However, because the federal regulations are very detailed and can be complex, it’s best to talk to an attorney before even asking employees to participate in random drug testing.
What if I become aware that one of my employees is addicted to drugs or alcohol? Can I fire them?
Employers must be careful to draw a line between an employee’s underlying medical condition, such as alcohol or drug dependence, and the employee’s behavior, such as whether they follow workplace rules and do their job. Vermont employers cannot fire anyone merely because they are addicted. However, they can take corrective action in response to workplace misconduct (such as using or being under the influence at work) or performance deficiencies (such as unexcused absences caused by drug or alcohol use).
In this respect, Vermont law is more protective of workers than its federal counterpart, the Americans with Disabilities Act (ADA). Under the ADA, current users of illegal drugs are excluded from the law’s anti-discrimination protections. Under Vermont law, however, current users of illegal drugs remain protected from discrimination unless such drug use prevents them from performing their job duties or constitutes a direct threat to the property and safety of others.
In other words, Vermont law protects workers who can safely do their job, even if they are currently struggling to overcome addiction.
What is the penalty if I unlawfully drug test my employees?
Under Vermont law, employees have the right to go to court to stop unlawful testing and to obtain any damages owed (including attorneys’ fees) based on the unlawful drug test.
An employee may also file a complaint with the Civil Rights Unit of the Vermont Attorney General’s Office, which investigates claims of violations of Vermont’s drug testing laws. If the state finds that a violation has occurred, employers may be fined between $500-$2,000 per violation.
In addition, an employer who knowingly violates the drug testing law may be subject to criminal penalties.
What happens if I violate the ADA or Vermont disability law in dealing with an employee addicted to drugs or alcohol?
The result would be the same if an employer violated those laws with respect to any other disability: the employee could pursue a private court action seeking damages or a court order requiring the employer to cure the discrimination, such as reinstatement to the job or providing a reasonable accommodation, which might include time off to treat the disability. Employers ruled to be in violation would also have to pay the employee’s attorney’s fees and costs as well.
In addition, the employee could seek government enforcement of the same remedies from the federal Equal Employment Opportunity Commission, the Vermont Attorney General’s Office, or (for state employees) the Vermont Human Rights Commission.
Here is the complete drug testing statute (see Subchapter 11).