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
- 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