Drug and alcohol testing (updated to include recreational marijuana)

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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:

  1. The employer has “probable cause” to believe an employee is using or is under the influence while at work; AND
  2. It can provide a bona fide rehab program for the employee; AND
  3. 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
  4. 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: 

  1. Does not require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace;
  2. Does not prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
  3. 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
  4. 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).

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Vermonter of the Month: Claire Hancock

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This is a monthly series in which the Attorney General will feature a Vermonter doing exemplary work in their community. Have someone you think should be featured? Email AGO.CAP@vermont.gov.

Claire Hancock is a licensed clinical social worker at Copley Hospital. Through 31 years of service, Claire has been a literal and tireless lifeline to people and families in a very challenged system, according to those who know her work.

We first met Claire during the Elder Protection Initiative listening tour—through which we sought to learn about the challenges facing older Vermonters. What we learned, in addition to these challenges, was the profound significance of Claire’s role as an advocate for the most vulnerable Vermonters. Claire, who has been quietly hailed in her local and professional community for decades of service helping patients and their families arrange for the care and services they need upon discharge from the hospital, prevents people from falling through the cracks.

Claire recently retired from full time-work at Copley Hospital, but continues to work a few hours each week as a clinical supervisor. She also recently began working part-time for Lamoille County Mental Health as the Elder Services Clinician, providing counseling and case management to older adults.

What is the greatest challenge you’ve experienced in working with vulnerable patients?

The greatest challenges of working with vulnerable adults are the inadequate resources available to them. While there are many agencies and programs that provide some assistance, it is a fragmented confusing system with complex eligibility criteria, so it is overwhelming and confusing to any person, not just vulnerable adults. Services are improving and expanding slowly but there are still big gaps, like inadequate transportation in the rural areas, lack of affordable housing, inadequate financing for hearing aids and dental issues, and not enough affordable quality care for those with dementia. On a personal level, I have been visually impaired since age 18 and do not drive so I experience the lack of transportation first hand.

What inspires your work, or is rewarding about this work?

What is rewarding for me in this work, is having the privilege of getting to know the unique, interesting lives and personalities of elders; hearing their stories of life as they share their most personal, heartbreaking, and sometimes wonderful experiences. Their wisdom and sweet spirit are so moving and inspiring.

What have you learned from your work?

I have learned that this work requires a great deal of empathy and patience as well as being a “detective” to get down to the facts as well as the emotions of a situation.  Whatever difficulties, conflicts and negative situations people are in, there is always fear and grief underneath. Our job is to access this fear and grief and help to relieve at least some of it. I believe that most people are well intentioned and want to do their best, but bad things do happen to good people.

I have learned that as a “helper,” I only know a small slice of a person’s life experience.  We must not judge. We must not make assumptions. Nothing is black and white; it is all gray, and the work is never done.

 What advice do you have for others looking to impact their community?

I believe that each town needs to develop (if they haven’t already) an organized, reliable volunteer program to help fill some of gaps in services, like transportation, food shopping, laundry and other household tasks and companionship. I know that there are many community members who would love to volunteer to help others with various tasks and care of elderly who are sick or have dementia, as this enriches the life of both the volunteer and the elder person.

Content Editor: Crystal Baldwin

Announcing: The Elder Protection Initiative

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Last Friday, on World Elder Abuse Awareness Day, our office made an important announcement: we launched a new unit focused on protecting older Vermonters. It’s called the Elder Protection Initiative, or EPI.

Supporting and protecting Vermont's aging population


The EPI is team of attorneys, investigators and staff from across the VT Attorney General’s Office (from its Criminal, Public Protection and Human Services Divisions) who will act to address issues facing older Vermonters through collaboration with government and community partners, public education, legislation, and enforcement. To read more about EPI, visit its website here: http://ago.vermont.gov/epi


The Listening Tour

The EPI has roots in a listening tour the Attorney General’s Office just completed. Throughout April and May, to better understand the unique challenges that older Vermonters face, a team from our Office visited each Vermont county, listening to older Vermonters and organizations that serve them. We shared meals in tight-knit communities, went on Meals on Wheels delivery routes, and shared in the varieties of joys and anguish that our elders are experiencing. We listened. We learned. And after meeting with dozens of older Vermonters and over 230 representatives of 65 organizations, we want to help.

Through our listening tour, we heard older Vermonters and organizations that serve them repeat similar concerns, including:

  • Isolation and lack of transportation
  • Lack of affordable housing
  • Lack of access to healthcare
  • Food insecurity
  • Finding affordable and suitable care for loved ones with Dementia
  • Difficulty accessing available information and resources
  • Our systems are struggling to uphold older Vermonter’s safety, security, and dignity

To help older Vermonters and those who serve them, our office established the Elder Protection Initiative described above. As the EPI embarks on its work, it will continue to listen and stay informed about issues facing older Vermonters.

First Collaborations

Already, the EPI has worked with Vermont 2-1-1 to address one of the most common concerns heard on the listening tour—difficulty accessing information and resources on programs and services that are available to older Vermonters (and their caretakers) where they live, from transportation to food delivery services (like Meals on Wheels). Vermont 2-1-1 maintains a 24/7 hotline and a website that provides just this information. To access this free information, dial 2-1-1 or visit vermont211.org.

EPI-Learn what we're doing

The Executive Director of 2-1-1, MaryEllen Mendl explains, “The 2-1-1 statewide system has been built over the course of the last 13 years for a public-private partnership between United Ways of Vermont and state government.  Allowing for a quality-driven platform for the delivery of professional information and referral, and a database containing thousands of community resources.” 2-1-1 is also committed to enhancing its capacity to assist callers with concerns specific to elder abuse and exploitation.

Thank you, Vermont 2-1-1, for this outstanding commitment to Vermont’s elders!  We look forward to seeing this collaboration flourish and many more develop as we work to support the needs of Vermont’s aging population.  The initiative has just started its efforts in support of Vermonters.  There are more developments and solutions that will come out of this group’s work. To stay connected, check in regularly on the Elder Protection Initiative page on the Vermont Attorney General’s Office website.

Contributing Writer: Crystal Baldwin

Vermonter of the Month: The Mercy Connections “Justice League”

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This is a monthly series in which the Attorney General features Vermonters doing exemplary work in their community. Have someone you think should be featured? Email AGO.CAP@vermont.gov.

This month we are honoring a team of people as our “Vermonters of the Month.” The Mercy Connections “Justice League” team works on the Justice and Mentoring program. The team is comprised of Joanne nelson, Director of Justice & Mentoring, Kelly Moran, Justice and Mentoring Coordinator for incarcerated or formerly incarcerated women, Mary Beth Barritt, Justice Liaison and Heather Gilbert, Program Facilitator.

Mercy Connections is an educational values-driven non-profit organization living the legacy of the Sisters of Mercy with an enduring concern for women. By compassionately nurturing self-sufficiency through education, mentoring, entrepreneurship and community, people are empowered to make significant life changes

Mercy Connections has 3 program areas that serve 300 participants: Education & Transition Programs (for adults who have faced adversity in meeting their personal, professional, and academic goals), Justice & Mentoring Programs (for people involved in the criminal justice system), and the Women’s Small Business Program (for aspiring female entrepreneurs).

Joanne, Kelly, Mary Beth and Heather have all dedicated themselves to lifting those around them who need help. The “Justice League” is doing essential work for Vermont women and we are honored to have them as our May Vermonters of the Month.

How has the team’s work impacted the community?

The Justice & Mentoring Program team alternates presence in the Treatment Court Docket to be able to receive referrals to the programs at Mercy Connections. In that action, we invite the women to a meeting with the director to become acquainted and to discover whether there is a desire to enroll in a class or program. Sometimes the referred woman is also interested in becoming a mentee in the Vermont Women’s Mentoring Program. The real impact on the woman is potentially multi-faceted. It is sometimes confidence-building to just get to Mercy Connections and enter a place that is not familiar. It is also clear that women feel and learn about a community here that is non-judgmental, educative, safe and brave and in that discovery, a potential participant may grow, relax and learn. There is something connective when the participant understands that Mercy Connections can become a supportive place, connected to the clinical and legal teams in the court docket, but that Mercy Connections is different. It is not mandatory, it is chosen freely…that ability to make a choice freely, well, that is often something that leaves a referred person empowered.

Executive Director, Dolly Fleming, has said that Mercy Connections “…weaves the social fabric of community and one’s [life]” and I believe that means that the (potential) impact on community is that Mercy Connections kind of weaves some of the very difficult, mandated parts of a recovering person’s life in with some of the softer, kinder, happier threads that every human being possesses. We think that holistic approach reflects something very positive on each person and on the community as a whole.

What is the biggest challenge?

We receive referrals to Mercy Connections which are not realized. They are not chosen by prospective participants.

On a challenging day, it may be hard to look at each individual accomplishment and realize joy against a very dismal system, (criminal justice, economy, racial and gender discrimination…), one that just doesn’t work for human beings.

In general, the challenges lie within the participant population and while we strategize and work hard, sometimes the biggest challenge is accepting that we can’t do more than we do.

What is rewarding about this work?

Our programs offer education to people. Education opens up doors. Open doors and access to more people means a more diverse, just world/community.

Knowing that we are working to offer possibilities for a more successful reentry process through the Vermont Women’s Mentoring Program and hence, a lower recidivism rate.

Working with participants who are rejected in many ways by society and learning how wonderful they are. How resilient they are. And how much they have to offer. Seeing a mentee’s face when she realizes we treat her and her mentor in the same respectful manner. That we don’t judge her based on the worst mistakes she has made. Being able to support mentors, some of whom have made serious mistakes, in a way that allows them to grow and give back.

What advice do you have for others looking to impact their community?

Become a volunteer for a worthy cause- one which speaks to the values you hold most dear. The action will allow you to realize greater purpose and meaning in your life.

Travel Tips

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If it’s time for you to escape on a getaway, keep in mind that scammers love to target those with travel plans. Vacations should be relaxing. Don’t let unexpected scams and travel pitfalls stress you out! There are countless ways one can be scammed while planning travel. With all the R & R you have scheduled, don’t get bogged down worrying about scams. This mindset is what scammers rely on to bilk you of your money.

Before travel:

  • Ask details about what is included in prices and look for hidden fees
  • If booking online, verify that you are using a credible website and double-check that you are on the correct site, rather than a copycat
  • Always do your own research before accepting the word of the person engaged in selling

While on your trip:

  • If you are notified about unauthorized credit card charges, contact your credit card issuer directly by calling the number on the back of your card. You might not be checking your statement history, but your credit card company generally understands your purchasing trends and may have fraud protection in place to alert you if they suspect an issue.
  • If you are renting a vehicle, know the ins and outs of your own auto insurance coverage. The rental agency will typically offer to sell you their insurance, so be prepared for this when you step up to the reservation desk. Protect yourself further from rental accident damage fraud by photographing the vehicle with on-site identifiers in the background (this is handy if you don’t have a date feature on your camera) both at the time of the initial rental and upon return. That way, if there is a damage dispute, you have photo proof of how the vehicle appeared while in your possession.
  • Free Wi-Fi and Wi-Fi that is not password protected could be problematic. Don’t sign into your accounts while using free or unsecure Wi-Fi. Why? You don’t know who is watching your online activity. Keying your password into an account may seem harmless, but scammers tracing your steps can log into your account later and access everything. Sure, it’s nice to have free Wi-Fi, but use it to check the news or browse tourist attractions, not to do your online banking.
  • While in a foreign country, you may be asked if you would like the total to be displayed in US dollars. If you say yes, the exchange rate may not be based on the actual currency rate, but based on the rate in the retailer’s system. The retailer receives any amount you pay over the actual exchange rate and you could be charged a conversion fee as well. Credit cards convert the foreign exchange rate based on the actual currency exchange rate, which is more accurate and doesn’t favor either party. Credit cards may also charge a conversion fee, so check the card’s terms before you travel.

While traveling, you don’t have to stress every minute about the possibilities of what might happen, but it will help to keep the above scenarios in mind so that you don’t find yourself in a stressful situation.

Contributing Writer & Photo Credit: Crystal Baldwin