Has your Vermont employer or a prospective employer asked you to take a drug test? If so, you’ll want to know your legal rights. Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, state and local laws determine whether a private employer may require drug testing.
Vermont allows employers to require applicants and employees to take drug tests, in limited circumstances. Employers are not required to drug test and are not allowed to conduct random testing.
Rules for Vermont Applicants
A Vermont employer may require an applicant to take a drug test only if the applicant has received a job offer conditioned on a negative test result. The employer must give applicants a written notice that includes:
- an explanation of the testing procedure
- a list of drugs to be tested for, and
- a statement that therapeutic levels of prescribed drugs will not be reported.
Rules for Vermont Employees
Employers in Vermont may test employees for drugs only if all of the following are true:
- The employer has reasonable cause to believe that an employee is using drugs or is under the influence.
- The employer has an employee assistance program (EAP) that provides for rehabilitation.
- Employees who test positive and agrees to enter the EAP may not be terminated.
Random testing is prohibited.
The employer must contract with a medical review officer who reviews test results and keeps them confidential. The officer must contact employees or applicants to explain a positive test result. Employees and applicants have the right to an independent retest at their own expense.
An employee who tests positive and agrees to enter the EAP or rehabilitation program may not be terminated. However, the employee may be suspended for up to three months to complete the program. If the employee subsequently tests positive, the employee may be terminated.
Legal Claims Arising From Drug Testing
Even though Vermont law allows employers to drug test in limited circumstances, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
- Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. An employer who conducts random testing or who tests without offering treatment through an EAP program, for example, would be in violation of the state’s testing law.
- Disability discrimination. The Americans with Disabilities Act (ADA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, the test result was inaccurate, and the employer acted maliciously in disclosing the information.