By Yvette Farnsworth Baker, Esq., Senior Legal Consultant at Current Consulting Group (CCG)
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Vermont’s state motto is “Freedom and Unity,” but employers in Vermont need to know that they are not actually free to drug test their employees any way that they please. Vermont has a strict mandatory drug testing program, and employers interested in drug testing in Vermont need to familiarize themselves with the details of the laws, including the restrictions on action following a positive test. Drug testing is permitted however, including testing for marijuana, if employers follow the state’s guidelines.
1. Drug Testing Law Type: Mandatory. Vermont has a mandatory drug testing law. Vermont’s drug testing law is one of the most restrictive in the nation and the law must be complied with by all employers, both public and private workplaces.
2. Random Testing: Random testing is prohibited in Vermont. 1 Pre-employment post-offer testing is permitted, as is reasonable suspicion testing (the Vermont law refers to it as “probable cause”).
3. Workers’/Unemployment Compensation Denial: Unemployment compensation can be denied for gross misconduct directly related to the employee’s work performance, including intoxication. 2 Worker’s compensation can be denied for an injury caused by or during the injured employee’s intoxication. 3 The burden of proof is upon the employer. Drug testing is not specifically mentioned in either the unemployment or worker’s compensation statutes.
4. Marijuana Laws: Both medical and recreational marijuana are legal in the state of Vermont. However, the law specifies that there is no cause of action against an employer that discharges an employee for violating a workplace marijuana policy. 4 Therefore, employers in Vermont can prohibit on- and off-duty marijuana use by employees.
5. How to Test: A written drug testing policy is required, and it must be detailed as to the testing circumstances, procedures, and consequences. 5 Point of care testing is prohibited. 6 Employees who test positive must be referred to rehabilitation, and termination of employment is only permitted if the employee refuses to enter rehabilitation or if after rehabilitation he or she tests positive. 7
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1 Vermont Stat. Ann. 21-513.
2 Vermont Stat. Ann. 21-1344.
3 Vermont Stat. Ann. 21-649.
4 Vermont Stat. Ann. 18-4230a(e)(3).
5 Vermont Stat. Ann. 21-514.
6 Vermont Stat. Ann. 21-514.
7 Vermont Stat. Ann. 21-513.
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