UPDATE & FEEDBACK REQUEST | Marijuana Legalization Legislation Signed Into Law | Next Steps and Need to Address Workplace Drug Testing

This week the Governor signed H.511 into law.  The bill, which was passed by the Legislature earlier this month, legalizes possession of up to one ounce of marijuana and cultivation of two mature marijuana plants and four immature plants. The bill falls short of more aggressive proposals to legalize and regulate the sale and purchase of marijuana and consumption in public. Nevertheless, this step forward in legalizing marijuana will 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.

Of particular concern, proposals under discussion to date have failed to address significant problems with Vermont’s workplace drug testing laws.

The question of reforming workplace drug testing is part of the ongoing charge of the Governor’s Marijuana Advisory Commission, particularly in the report and recommendations due this coming December.  For more information on the commission, click here.

AIV is conducting a confidential survey of employers to ensure that these issues are part of the ongoing debate on further steps 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.

Further Discussion of Issues for Manufacturers and Other Employers

AIV has testified in recent years to a number of concerns with legalization for employers, especially manufacturers. AIV has highlighted four areas of concern in particular:

Hiring new employees. Although there has been growing and appreciated attention to the difficulty manufacturers and other employers are having finding new employees who are qualified for the jobs needed to be filled, for several years there has been another serious hiring problem. The number of potential new hires who fail initial drug tests can often be alarmingly high. To the extent that marijuana usage might become more widespread, frequent, or considered acceptable behavior, the availability of qualifying new hires in Vermont could become even more limited than it already is.

Workplace safety. Impairment under the influence of drugs and alcohol is a significant contributing factor in workplace accidents. This is not only a direct health and safety issue – workers’ compensation costs in Vermont are high compared to other states, especially for manufacturers, and the small size of the insurance pool makes insurance rates especially sensitive to a comparatively small change in incident rates. To the extent that marijuana usage might become more widespread, frequent, or considered acceptable behavior, workplace safety and workers’ compensation costs could be negatively impacted.

This issue also highlights and gives greater weight to long-standing concerns of employers that Vermont statutes unduly restrict drug testing and the options employers have to respond to drug use and to try to ensure a safe and productive workplace, regardless of legalization.

Labor litigation. As has already been seen in other states, the perception and expectation disconnect between state legalization of marijuana, acceptable workplace behavior and policies, and federal law can lead to conflict and litigation over workplace policies and managerial and disciplinary decisions. Even as some legal issues are resolved in other states that have legalized marijuana, differences in relevant state statutes and appeal court circuits make it reasonable to assume that Vermont employers would be exposed to unwarranted and unreasonable litigation costs and risks should Vermont legalize marijuana.

Economic development. In light of the issues outlined above, as well as other issues associated with drug legalization, it is reasonable to be concerned that marijuana legalization could negatively influence economic development in Vermont. There are many factors that employers weigh in deciding where to locate and where to direct investment and production. Availability of new hires, workplace safety, and litigation costs and risks are clearly among these many factors. For manufacturers and others engaged in federal contracts or otherwise subject to federal requirements, the disconnect between state and federal laws on marijuana can enhance some of these potential concerns.

Members concerned about the potential impacts and risks associated with marijuana legalization are encouraged to contact us at info@aivt.org for more information about options for engaging on this issue.

Importance of Reforming Drug Testing

Although reforming drug testing rules would not resolve all of the serious problems and concerns with marijuana legalization and AIV would not support additional legalization steps even with the inclusion of such reforms, such reforms have been a long standing priority and are long overdue in their own right.

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 considered 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 proposed 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.

Drug testing questions are included in the employer survey on marijuana legalization linked above. Members with questions or suggestions or who are interested in helping engage on this issue, regardless of what happens with marijuana legalization, are encouraged to contact us at info@aivt.org.