Vermont’s recreational marijuana law will take effect on July 1, 2018. (Click here for our previous blog summarizing this law and its impact on employers).  On June 14, 2018, the Vermont Office of the Attorney General published the Guide to Vermont’s Laws on Marijuana in the Workplace. The Guide provides employers with an overview of the changes to Vermont’s marijuana laws, and summarizes existing employment laws relating to drug testing in the workplace.

Recreational Marijuana

Under Vermont’s recreational marijuana law, individuals will no longer face criminal penalties for possessing: (i) up to an ounce of marijuana or five grams of hashish; and (ii) two mature and four immature marijuana plants. But employers still maintain certain rights:

• Employers are not required to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace;

• Employers may prohibit or otherwise regulate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana on their premises;

• Employers may adopt policies prohibiting the use of marijuana in the workplace; and

• The law does not create a legal cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees.

Medical Marijuana

Vermont’s medical marijuana law permits individuals with certain debilitating medical conditions to use and possess medical marijuana. However, this law prohibits medical marijuana users from being under the influence of marijuana in a workplace or place of employment, or while driving a motor vehicle or operating heavy machinery or handling a dangerous instrumentality. It is therefore permissible for employers to have policies banning the use or possession of medical marijuana at work or being under the influence of medical marijuana at work.

Current Users of Illegal Drugs May Be Protected As Disabled

Despite the provisions listed above that appear helpful to employers, the Guide reminds employers that under Vermont’s Fair Employment Practices Act (“VFEPA”), it is unlawful for an employer, employment agency, or labor organization to discriminate against a “qualified individual with a disability.” Like the federal Americans with Disabilities Act, VFEPA protects recovering and recovered substance abusers.  According to the Guide, however, VFEPA differs from the ADA, with regard to current illegal drug use. The ADA does not protect current users of illegal drugs. Under VFEPA, employees’ current illegal drug use does not automatically disqualify the employee from protection under Vermont’s disability laws unless that use: (i) prevents them from performing the duties of their job, or (ii) constitutes a “direct threat to the property and safety of others.” Thus, Vermont law protects workers who can safely do their jobs, even if they are currently struggling to overcome addiction.

Additionally, if an employer becomes aware that an employee or applicant is a medical marijuana cardholder, the law may treat the employer as being on notice that the employee or applicant has a disability. Even if the employer does not learn of the specific debilitating condition, the employer will gain an understanding that the employee has a medical condition that is sufficiently debilitating to grant the employee the right to obtain marijuana from a state medical marijuana dispensary. Employers must be careful that employment decisions are not based on any actual or perceived underlying disability that may be related to the medical marijuana use.

Conflict With the Recreational Marijuana Law?

Vermont’s disability law may appear to conflict with the recreational marijuana law (specifically, the recreational marijuana law states that employers cannot be sued for enforcing a no-marijuana policy, even with regard to off-duty use). The Guide states that there is no conflict between the two laws because the recreational marijuana law states that it does not create a new legal claim for employees who are fired for violating a policy prohibiting marijuana use. So if an applicant or employee has a valid claim of disability discrimination related to medical use of marijuana, it is not barred by the recreational marijuana law.

Vermont’s Drug Testing Law

Finally, the Guide addresses Vermont’s drug testing law. Employers should note that Vermont has a restrictive drug testing law, which permits pre-employment testing and probable cause testing only. Automatic post-accident testing and random testing are prohibited. The law requires employers to have a written drug testing policy, use laboratories approved by the Vermont Department of Health, have all drug test results reviewed by a Medical Review Officer, among many other technical details. In addition, termination of employees is not permitted for a first-time positive test result; rather, the employee must be offered an opportunity to participate in an Employee Assistance Program and may be discharged only if he or she refuses to participate or subsequently tests positive after completing rehabilitation.

Employers still are permitted to test for marijuana once the recreational marijuana law takes effect on July 1, 2018, but are reminded not to take adverse employment actions that may lead to disability discrimination claims.