As of July 1, 2018, Vermont became the latest state (in addition to the District of Columbia) to legalize recreational marijuana, and the first to legalize via legislative initiative. The bill, known as Act 86, legalizes the recreational use and growth of small amounts of marijuana for adults ages 21 and older. Recreational sales remain prohibited in the state. The law provides clarification for employers on how their drug-free workplace policies are to change in light of legalized marijuana in the state.
With a medical marijuana program already in place, Act 86 provides additional guidelines for employers in addition to legalizing recreational marijuana. Employers in Vermont should carefully consult all applicable laws to ensure full compliance with the nuanced medical, recreational, and mandatory drug testing laws in the state.
Vermont Recreational Marijuana
Act 86: What Does it Say?
Under Act 86, adults are permitted to possess one ounce or less of marijuana and/or two mature and four immature marijuana plants. There is no framework in place for recreational sales, and sales remain illegal under Vermont law.
Act 86 does not require employers to permit the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace. Employers can continue to adopt policies that prohibit the use of marijuana in the workplace and retain their rights to terminate and/or discipline based on the violation of their established drug-free workplace policy and/or based on a marijuana positive drug test. Even though recreational marijuana use is now legal in the state, employers are not required to accommodate and/or permit on or off-duty use of the drug.
Medical Marijuana and Employment
Medical marijuana has been legal in the state of Vermont since 2004. Medical marijuana users are not permitted to be under the influence of marijuana while in the workplace or while operating heavy machinery and/or handling a dangerous instrument, which would imply that employers have an obligation to continue testing and disciplining for those employees in safety-sensitive positions, regardless of card holder status.
Smoking marijuana (recreational or medicinal) is prohibited in the workplace, regardless of cardholder status. Generally speaking, employers retain all rights to prohibit marijuana use in the workplace. Additionally, employers are permitted to prohibit working under the influence, regardless of cardholder status.
Marijuana and Disability Protections
Vermont employers are subject to both the Americans with Disabilities Act (ADA) and Vermont’s Fair Employment Practices Act (VFEPA). The ADA does not protect current drug users, and as marijuana remains a Schedule I drug federally, medical marijuana users are not protected by the ADA regardless of state laws. The ADA qualifies past drug use as a qualifying disability but does not extend protections to employees that are under the influence of drugs in the workplace, employees that fail to meet workplace performance standards, or employees that engage in misconduct.
The VFEPA provides limited protections to medical marijuana and current drug users in Vermont. Vermont’s medical marijuana program is only accessible to those with a “debilitating medical condition”, and the VFEPA applies to qualified individuals with a disability. By definition, the majority of those state residents that qualify for medical marijuana are protected by the VFEPA, meaning that they are protected from employment discrimination. Employers cannot mistreat or refuse to provide a reasonable accommodation to qualifying employees, many medical marijuana users in the state now included.
Additionally, the VFEPA does not disqualify current illegal drug users from its protection (current illegal drug users are only disqualified if their drug use prevents them from performing the duties of their job or constitutes a direct threat to the property and/or safety of others). Under the VFEPA, employers cannot mistreat or refuse to provide a reasonable accommodation to qualifying employee, potentially including current illicit drug users.
The VFEPA does not mean that employers are prohibited from testing employees for marijuana use. Regardless of cardholder status, employers retain their rights to test for marijuana, and in many cases retain their rights to discipline and/or terminate based on a marijuana-positive result. For example, in an incidence where a VFEPA-protected employee is in a situation that the employer would deem not safe should the individual be impaired, such as a safety-sensitive position, the employer should consult with HR and offer a reasonable accommodation to the employee. Before taking any such employment action, employers should review the VFEPA and other state laws carefully, in addition to consulting with legal counsel.
Marijuana in Vermont
Recreational marijuana is now permitted in Vermont, and employers should take precautions to protect their workplace from potential costly accidents and/or mistakes due to marijuana-using employees. Act 86 does not require employers to accommodate the use of marijuana in the workplace, however, certain provisions exist for qualifying medical marijuana patients. Employers should review drug-free workplace policies and all applicable laws to ensure compliance, in addition to consulting with legal counsel.
What Should Vermont Employers Do?
As marijuana laws change it’s increasingly difficult for employers to keep up with the rules. Although marijuana is legal, it does not mean employees can show up to work while impaired. DISA recommends reasonable suspicion training and education, which allows employers to effectively determine drug use in the workplace. Through proper training, managers learn to adequately identify the signs and symptoms of drug use, how to professionally approach and handle the situation, and make an informed decision to test or not to test.
Tips for Employers
- Review your company’s policy regarding drug use and update if necessary.
- Take local and federal laws into account.
- Reiterate policies to your workers.
- Reiterate policies to your workers again!
- Consistently enforce policies to avoid liability.
- Educate workers about how marijuana works in the body.
For your individual country, state or local laws, please refer to your legal counsel. DISA's industry best practices are not legal advice and depending on your situation you may want to take a different approach.
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Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background check, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.