Vermont\u2019s drug testing law does not prevent employers<\/a><\/em> 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.<\/p>\n\n\n\n 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. <\/p>\n\n\n\n Drug testing requirements are rigorous and prescribed by law because a policy of drug testing employees is serious. The criteria is summarized as follows:<\/p>\n\n\n\n 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.<\/p>\n\n\n\n [1]<\/a> 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. \u00a7 514.<\/a><\/u><\/em><\/p>\n\n\n\n Here is the complete drug testing statute<\/a> (see Subchapter 11). <\/p>\n\n\n\n In the context of the drug testing law, \u201cprobable cause\u201d 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.<\/p>\n\n\n\n No. \u201cReasonable suspicion\u201d 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.<\/p>\n\n\n\n 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 \u2014 which can happen for many reasons \u2014 isn\u2019t enough.<\/p>\n\n\n\n Some of the same rules apply, some don\u2019t. Employers do not <\/em>need probable cause to test job applicants nor do they need to offer them rehab. Employers do<\/em> need to hold off on drug or alcohol testing until a job offer has been made and employment is conditioned on passing the test. <\/p>\n\n\n\n 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]<\/a>.<\/p>\n\n\n\n With regard to possible criminal history of applicants, we recommend employers also check out our plain language guidance on the \u201cBan the Box\u201d statute<\/a>.<\/p>\n\n\n\n [1]<\/a> 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. \u00a7 514.<\/a><\/u><\/em><\/p>\n\n\n\n Here is the complete drug testing statute<\/a> (see Subchapter 11). <\/p>\n\n\n\n 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<\/a>. 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.<\/p>\n\n\n\n The new marijuana law does not change Vermont\u2019s drug testing laws. For more information check out our guidance<\/a> aimed at assisting employers in navigating Vermont’s new recreational marijuana laws.<\/p>\n\n\n\n Yes, the new law (Vermont Act 86<\/a>) contains several provisions expressly preserving certain employer rights. For example, it specifically states the following: <\/p>\n\n\n\n Employers should respect an applicant\u2019s privacy and proceed with caution! Vermont issues medical marijuana cards only to individuals who need to treat a \u201cdebilitating medical condition\u201d \u2014 a term that includes many legally-protected disabilities, such as cancer, glaucoma, or post-traumatic stress disorder. Because disability discrimination is unlawful, employers must <\/em>ensure their decision-making isn\u2019t affected by biased assumptions about a person\u2019s known or suspected disabilities. (Remember: it\u2019s illegal to discriminate against someone because one thinks<\/em> they\u2019re disabled \u2014 even if they aren\u2019t actually disabled.)<\/p>\n\n\n\n Because each hiring decision is fact-specific and the consequences of disability discrimination are serious, employers with legal questions should consult with an attorney.<\/p>\n\n\n\n Remember also that a medical marijuana card does not <\/em>entitle anyone to use or bring marijuana to the job or work under the influence.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n An employer may offer a bona fide rehab program via an Employee Assistance Program (\u201cEAP\u201d), under an employee health insurance policy, or employer contract with a local hospital.<\/p>\n\n\n\n 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\u2019s 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\u2019s 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. <\/p>\n\n\n\n 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 <\/em>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. <\/p>\n\n\n\n But remember– even though random drug testing is prohibited, employers can<\/em> 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.<\/p>\n\n\n\n Unless federal law requires such testing, Vermont employers cannot request, require, or conduct company-wide testing.<\/p>\n\n\n\n Yes. As mentioned above, in limited circumstances, random drug testing may be required by federal law or regulation<\/a>. For example, certain federal motor carrier safety regulations may require certain drivers to undergo periodic physical testing that may include drug tests. <\/p>\n\n\n\n However, because the federal regulations are very detailed and can be complex, it\u2019s best to talk to an attorney before even asking employees to participate in random drug testing.<\/p>\n\n\n\n Employers must be careful to draw a line between an employee\u2019s underlying medical condition, such as alcohol or drug dependence, and the employee\u2019s behavior<\/em>, 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). <\/p>\n\n\n\n In this respect, Vermont law is more protective of workers than its federal counterpart, the Americans with Disabilities Act (ADA). Under the ADA, current<\/em> users of illegal drugs are excluded <\/em>from the law\u2019s anti-discrimination protections. Under Vermont law, however, current users of illegal drugs remain protected from discrimination unless<\/em> such drug use prevents them from performing their job duties or constitutes a direct threat to the property and safety of others. <\/p>\n\n\n\n In other words, Vermont law protects workers who can safely do their job, even if they are currently struggling to overcome addiction.<\/p>\n\n\n\n Under Vermont law, employees have the right to go to court to stop unlawful testing and to obtain any damages owed (including attorneys\u2019 fees) based on the unlawful drug test.<\/p>\n\n\n\n An employee may also file a complaint<\/a> with the Civil Rights Unit of the Vermont Attorney General\u2019s Office, which investigates claims of violations of Vermont\u2019s drug testing laws. If the state finds that a violation has occurred, employers may be fined between $500-$2,000 per violation. 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\u2019s attorney\u2019s fees and costs as well.<\/p>\n\n\n\n In addition, the employee could seek government enforcement of the same remedies from the federal Equal Employment Opportunity Commission<\/a>, the Vermont Attorney General\u2019s Office<\/a>, or (for state employees) the Vermont Human Rights Commission<\/a>.<\/p>\n\n\n\n Here is the complete drug testing statute<\/a> (see Subchapter 11).<\/p>\n\n\n\nWhat are the “very limited circumstances” in which I can drug test my employees?<\/h2>\n\n\n\n
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What is \u201cprobable cause\u201d?<\/h2>\n\n\n\n
I\u2019ve read about \u201creasonable suspicion drug testing.\u201d Is that the same as \u201cprobable cause?\u201d<\/h2>\n\n\n\n
Can I drug test employees simply because they\u2019ve had a workplace accident?<\/h2>\n\n\n\n
Do the same rules apply to job applicants?<\/h2>\n\n\n\n
What kind of drug testing is allowed?<\/h2>\n\n\n\n
Have Vermont\u2019s employer drug testing laws changed now that recreational marijuana is legalized as of July 1, 2018?<\/h2>\n\n\n\n
Does the new recreational marijuana use law address the workplace otherwise?<\/h2>\n\n\n\n
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I\u2019ve 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?<\/h2>\n\n\n\n
My employee tested positive. I understand I need to provide rehab, but do I have to pay for it?<\/h2>\n\n\n\n
Do I have to pay for an employee\u2019s time off for rehab?<\/h2>\n\n\n\n
I obviously can\u2019t have my staff under the influence on the job. Can I randomly drug test my staff?<\/h2>\n\n\n\n
If I can\u2019t randomly test, can I schedule an annual test for all employees?<\/h2>\n\n\n\n
Are there exceptions to the prohibition on random drug testing?<\/h2>\n\n\n\n
What if I become aware that one of my employees is addicted to drugs or alcohol? Can I fire them?<\/h2>\n\n\n\n
What is the penalty if I unlawfully drug test my employees?<\/h2>\n\n\n\n
In addition, an employer who knowingly violates the drug testing law may be subject to criminal penalties.<\/p>\n\n\n\nWhat happens if I violate the ADA or Vermont disability law in dealing with an employee addicted to drugs or alcohol?<\/h2>\n\n\n\n