UPDATED | Survey on Workplace Drug Testing and Marijuana Legalization

[NOTE:  See updated post here]

In 2017, the Governor vetoed legislation, S.22, to legalize marijuana in Vermont.  However, the Administration has since created the Governor’s Marijuana Advisory Commission to review outstanding issues and options for legalization, and has indicated potential support for legislation in 2018.

This will therefor continue to be an important issue for manufacturers and other employers. Among the many issues raised by this question are workplace safety and hiring challenges facing Vermont employers. This is especially acute for manufacturers and companies relying on government contracts.

AIV is conducting a confidential survey of employers to ensure that these issues are part of the ongoing debate and to identify additional issues. Responses to this survey will be used only in the aggregate.

We encourage you to complete this confidential survey, and please don’t hesitate to contact us at info@aivt.org if you want to discuss this matter further.

Click here for the survey.

Of particular concern, legislation under discussion to date has and continues to fail to address significant problems with Vermont’s workplace drug testing laws.  Drug testing reform is a priority for AIV — the issue is discussed generally below and employers interested in more information or options for engaging on this issue are encouraged to contact us at info@aivt.org.

Problems with Vermont’s Workplace Drug Testing Laws

Apart from testing job applicants and testing under preempting federal rules (such as for CDL drivers, defense and other federal contract work, etc.), Vermont’s workplace drug testing rules can easily be argued to be the most restrictive in the nation. Many states do not even have specific state laws, giving employers full discretion within the bounds of federal laws for non-discrimination, ADA protections, and the like. Those states that do have their own laws tend to allow or even require testing on reasonable suspicion, after accidents, and other circumstances — in some cases even at random.

In contrast, Vermont employers can only test employees when they can show probable cause (a much higher standard than reasonable suspicion). If an employee tests positive, the employer cannot discharge them and instead must put them through a drug rehabilitation program. After rehabilitation, an employer cannot test the employee again unless they can again show probable cause. Only after failing such a test after rehabilitation can an employer discharge the employee for violating the employer’s drug policy.

AIV has recommended that employers who have a written drug testing policy and clear notice to employees of what that policy entails be allowed to test in cases of reasonable suspicion, as part of scheduled company-wide testing, as a follow up on rehabilitation, and after accidents. Referral to rehabilitation would be optional for the employer. Discipline up to and including discharge would be allowed for any failed test or refusal to submit to a test. The existing disqualification for workers’ compensation for accidents caused in part by intoxication would be clarified, as would be the category of disqualification for UI benefits for someone discharged for violating an employer’s workplace drug policy.

AIV will be working on renewed efforts to address these issues and concerns in the next legislative session.  As noted above, employers interested in more information or options for engaging on this issue are encouraged to contact us at info@aivt.org.