Vermont’s Crackdown on Drug Testing Underscores the Importance of Compliant, State-Specific Drug Testing Policies for Multistate Employers

My unabashed love affair with the state of Vermont has been around for quite a while. Maple syrup, Phish, innovative ice cream, beautiful scenery, and a statewide ban on interstate billboards—what’s not to love? Another interesting feature about the Green Mountain State: Vermont prides itself on being extraordinarily restrictive on employers that wish to drug test their employees.

Title 21, Chapter 5, Section 513 of the Vermont Statutes states: “An employer shall not request, require, or conduct random or company-wide drug tests except when such testing is required by federal law or regulation.” Stated more plainly, Vermont prohibits random drug testing of employees. Vermont does allow for employers to drug test job applicants after a conditional offer of employment has been made. The state also allows employers to drug test current employees if there is probable cause/reasonable suspicion. However, random testing is absolutely prohibited.

This creates significant difficulty for Vermont employers that maintain operations in other states because most states do allow for random drug testing of employees. If an employer maintains a blanket multistate drug testing policy allowing for random testing, it may not realize it is violating Vermont law.

To make things even more difficult on Vermont employers, if a current employee tests positive on a lawful drug test required because the employer had probable cause to believe the employee was using drugs, the employer may not terminate the employee’s employment for failing the test. Instead, employers must maintain an Employee Assistance Program or a comparable rehabilitation program and must give the employee an opportunity to participate. The employee can only be discharged if he or she completes the program and then subsequently fails a post-program drug test.

Now, you may be asking yourself, “Does Vermont care about these technical requirements?” The answer is an overwhelming “yes.” In fact, Vermont takes drug testing so seriously that the Vermont Attorney General’s Office’s Employment Discrimination Complaint form has a specific box employees can check if their employers unlawfully required that they take a drug test or discriminated against them based on a drug test. In addition to possible employment disputes, the Vermont drug testing law provides for civil penalties of between $500 and $2,000 for each violation.

Employers in Vermont should be aware of the state’s strict drug testing laws and the aggressive enforcement of these laws. Employers maintaining operations in Vermont may want to review their drug test policies to ensure they are compliant under Vermont law.

Perhaps more importantly, this discussion of Vermont’s drug testing laws can serve as a wake up call to national and/or multistate employers regardless of whether they have operations in Vermont. Drug testing laws vary widely from state-to-state, and oftentimes employers can find themselves in no-win situations due to various technical requirements in different states. A one-size-fits-all drug testing policy may be difficult to implement and can create potential liabilities in states with restrictive drug test laws such as Vermont, California, Maine, and Minnesota. Employers with operations in multiple states may want to take a hard look at their drug testing policies to ensure that they remain compliant across the board and ensure that you do not become the victim of a costly drug testing “gotcha!”

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor and report on changes to state drug testing laws, in addition to relevant cases.