Vermont Drug Testing Laws for Employers

A Prohibition, Not a Permission

21 V.S.A. chapter 5, subchapter 11 is structured backwards from most testing laws. Section 512(a) says an employer shall not, as a condition of employment, request, require or administer a drug test to an applicant. Section 513(a) says an employer shall not, as a condition of employment, promotion or change of status, or as an express or implied condition of a benefit or privilege of employment, request, require or administer a drug test to an employee. Everything after that is an exception.

Both sections also prohibit requesting or requiring a person to consent, directly or indirectly, to a practice the subchapter prohibits. That closes the door most employers reach for when a statute gets inconvenient.

Two Categories That Simply Are Not Available

Random and company-wide testing. Section 513(b) prohibits both except where required by federal law or regulation. Note it covers blanket company-wide testing as well as random selection, so "we test everyone every January" is prohibited too. There is no safety-sensitive exception to reach for, a collective bargaining agreement cannot create one, and consent cannot cure it.

Post-accident testing. Vermont's statute contains no post-accident authority at all. This is not a narrow exception you have to fit inside — it does not exist. A post-accident test has to stand on probable cause assessed from what someone actually observed, or on a federal mandate.

For a multi-state employer, that means the Vermont post-accident protocol has to be rewritten as an observation-based one: trained supervisors, contemporaneous documentation, and a decision made on what was seen rather than on the fact that an incident occurred.

Probable Cause Testing: Four Conditions, All Required

1. Probable cause to believe the employee is using or is under the influence of a drug on the job.
2. A bona fide rehabilitation program available to the employee for alcohol or drug abuse — provided by the employer, or available under a health insurance policy or nonprofit hospital service corporation contract. If no such program is available, you may not test.
3. Compliance with the no-termination rule in 513(c)(3).
4. Administration in accordance with section 514.

Condition two is worth pausing on. In Vermont the existence of a rehabilitation route is a precondition to testing at all, not a consequence of a result.

You Cannot Terminate on a First Positive

Under 513(c)(3), an employer may not terminate an employee who agrees to participate in and then successfully completes the employee assistance program. Suspension is limited to the time needed to complete the program and in no event longer than three months. Termination becomes available only after a second compliant test comes back positive following completion.

Section 517 preserves an employer's authority to prohibit nonprescribed drug or alcohol use during work hours and to discipline, suspend or dismiss an employee for being under the influence during work hours — but expressly "except as that authority is restricted under subsection 513(c)(3)." Where a drug test is involved, the rehabilitation requirement overrides ordinary discipline authority.

The Testing Mechanics

• No employer-requested blood. Section 514(3) bars the employer from requesting or requiring a blood sample. A person tested by urinalysis may, at their own expense, request a blood draw be preserved for later testing.
• A Vermont Department of Health-designated laboratory only. Not a laboratory of your choosing.
• A certified medical review officer — a licensed physician who reviews and evaluates all results, personally contacts the person tested, and reports only confirmed results to the employer.
• Therapeutic levels are reported as negative. Under 514(8), detection of a drug at a therapeutic level must be reported as a negative result, and the report may not indicate the presence of a drug at a therapeutic level. The employer never learns of it.
• Confirmation by GC/MS or an equivalent scientifically accepted quantitative method; a laboratory may report urine positive only if both the initial and confirmation tests are positive.
• Retest right: the MRO must offer an opportunity to retest a portion of the sample at an independent laboratory at the person's expense, and must consider the result.
• 90-day preservation of a portion of any positive sample after the person receives the result.
• HHS-certified collector for each specimen type, recertified every three years, who may not be an employee of the employer when collecting from employees for probable-cause testing. The one relaxation: a collector may be your employee when collecting from applicants.
• Confidentiality: health care information about the person tested may be collected only by the MRO, and the MRO may not reveal the person's identity even to the laboratory.

The written policy must identify the circumstances under which testing may occur, the test procedures, the drugs screened, a statement that over-the-counter medications and other substances may produce a positive, and the consequences of a positive — and section 514(2) requires that the policy "incorporate all provisions of this section." A policy omitting any section 514 requirement is itself noncompliant.

Applicants

Applicant testing is permitted post-offer, with the offer conditioned on a negative result, and with written notice of the testing procedure and the drug list — including a statement that therapeutic levels of medically prescribed drugs will not be reported. That notice may not be waived by the applicant. The full section 514 machinery applies.

Cannabis, and a Repealed Section

Vermont's cannabis statutes give employees no affirmative employment protection. 18 V.S.A. 4230a(e) provides that nothing requires an employer to permit or accommodate cannabis in the workplace, prevents adopting a prohibiting policy, creates a cause of action against an employer that discharges an employee for violating such a policy, or prevents regulating cannabis on the premises.

Watch the citation, though. The former employment-adjacent medical provisions at 18 V.S.A. 4472 through 4474n were repealed by 2019, No. 164 (Adj. Sess.), and the program moved to 7 V.S.A. chapters 35 and 37. The current registry sections contain no employment nondiscrimination provision. Guidance citing 18 V.S.A. 4474c for a Vermont medical cannabis employment protection is citing a repealed section. Section 520 of the testing statute was likewise repealed in 2017.

The real protection is indirect but strong. Because cannabinoids are a listed drug under 21 V.S.A. 511(3), a cannabis test of an employee is a drug test — so it can only be done on individual probable cause, and a first positive cannot support termination where the employee completes rehabilitation. How 4230a(e)(3), barring a cause of action for discharge over a cannabis policy violation, squares with 513(c)(3), barring termination on a first positive, is not resolved on the face of either statute. Treat that overlap as unsettled and route it to counsel before terminating.

The Workers' Compensation Squeeze

21 V.S.A. 649 bars compensation for an injury caused by willful intention to injure, by or during intoxication, or by failure to use a provided safety appliance — and places the burden of proof on the employer claiming the benefit of the section.

Which creates an awkward position: the statute asks the employer to prove intoxication, while 513(b) forbids the routine post-accident testing that would ordinarily generate that proof. The evidence has to come from documented contemporaneous observation supporting probable cause. That makes supervisor training less of a nicety here than almost anywhere else on this site.

Where This Lands

Vermont's employment base spans healthcare, tourism and ski resorts, dairy and specialty food and beverage manufacturing, semiconductor and precision manufacturing, higher education, and construction. Manufacturing and construction employers used to running random programs elsewhere will find Vermont requires a genuinely different design — not a modified one.