White River Junction
To help them navigate, the Vermont Attorney General’s Office recently released guidelines for businesses to follow. Attorney General TJ Donovan said his office drafted the 17-page guide to help business owners understand their obligations and rights under Act 86, which allows Vermonters who are over the age of 21 to grow and possess small amounts of marijuana.
The guide followed inquiries from several businesses in the state about how the new law might affect them, Donovan said in a news release last week.
Emily Adams, an assistant attorney general within the state’s Civil Rights Unit, acknowledged that the answers to some questions employers might have are still being fleshed out.
“To be frank, this is going to be a living document that will evolve,” she said of the guidelines.
One of the more frequent questions from business owners has been what, if anything, has changed with drug testing because of Act 86, Adams said.
The answer is straightforward, she said. The new marijuana law doesn’t alter existing employer drug testing laws in the state, which allow for testing only in limited circumstances.
Already, random drug testing of employees in Vermont is not permitted. Under the new law, an employer who has extended a job offer still could require a drug test as a prerequisite to employment, and if the candidate fails it, the employer could opt not to hire that individual, even if the substance involved is marijuana.
Testing after hiring is permitted when an employer has probable cause to believe an employee is under the influence of a drug on the job. However, if an employee tests positive, he or she generally can’t be terminated as long as the individual completes a substance abuse rehabilitation program, the law states.
Employers are not required to tolerate the use of marijuana in the workplace, and they may prohibit, regulate and adopt policies banning marijuana use, the attorney general’s guidelines state.
In addition, though it is rare, some employers could maintain a “zero-tolerance policy” for marijuana use “both on and off the clock,” and an employee who is fired for violating such a policy could not use Act 86 as a basis for a legal challenge, according to the guide.
That’s because Vermont is an at-will employment state, so employers have the discretion to make polices about conduct as long as those policies are lawful, Adams said. (There are some exceptions for medical marijuana.)
At least two Upper Valley employers said on Monday that they are not particularly concerned about the change in state law.
“We have seen the information … and are aware of impending changes, but we do not have any questions or concerns at this time,” said Barbara Sleeper with King Arthur Flour’s human resources department.
Vermont Castings Vice President and General Manager Jeffrey Nelb said the new law will have no impact on daily operations and won’t lead to any policy changes at the foundry.
“Our initial thought is this doesn’t really change anything for us. We obviously don’t allow people to be impaired within the workplace,” Nelb said. “It isn’t changing any of our internal policies.
He said the “zero-tolerance policy” wouldn’t be applicable at Vermont Castings.
“We don’t try to govern what people do outside of our premises,” Nelb said.
That’s how it should be, with the exception of a few professions, said Matt Simon, the director of the Marijuana Policy Project, a group working to end marijuana prohibition.
“I don’t think employers should care at all what employees do on a Friday or Saturday night,” he said.
Doing so can restrict highly qualified applicants “because this person prefers cannabis to alcohol,” he said.
“It really doesn’t change much with regard to workplace laws,” Simon said of Vermont’s new marijuana law. “The bigger question is, employers can have policies that discriminate against marijuana users and should they?”
Certain jobs, such as commercial truck drivers, are governed, in part, by federal laws, which have their own limits and testing requirements.
Federal law still prohibits use, sale and possession of marijuana.
Separately, individuals in Vermont with a medical marijuana card and those with substance abuse issues may be protected in the workplace under the state’s Fair Employment Practices act.
“While Vermont’s medical marijuana laws do not require employers to tolerate the consumption or possession of marijuana in the workplace, the laws do not permit employers to discriminate against disabled applicants or employees who use medical marijuana outside of work to treat their disability,” the guide says.
The marijuana law, which Gov. Phil Scott signed into law in January, legalized the possession of up to an ounce of marijuana and up to six plants depending on their maturity.
Meanwhile, Vermont State Police officers also are in the midst of getting up to speed on the new law. The agency will hold a media availability today regarding how the law will impact State Police operations, such as training and enforcement, said spokesman Adam Silverman.
The training bulletin State Police recently issued includes the penalties for people who violate the law. For example, a person who possess more than an ounce of marijuana could still face jail time, depending on the amount.
Any businesses with questions about how to apply the new law can call the Attorney General’s Civil Rights Unit at 802-828-3657.
Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.