On June 14, 2018, the Vermont Attorney General released its “Guide to Vermont’s Laws on Marijuana in the Workplace,” which can be found here. The Guide is aimed at assisting Vermont employers in navigating the state’s new recreational marijuana law, although it also addresses the state’s medical marijuana law, disability discrimination law, and drug testing law.

As we previously reported, effective July 1, 2018, adults age 21 or older who possess one ounce or fewer of marijuana or five grams or fewer of hashish and two (or fewer) mature marijuana plants or four (or fewer) immature marijuana plants will not be penalized or sanctioned in any manner by the State. The law is silent, however, about creating a state market for recreational marijuana. In Governor Scott’s statement about the new law, he noted that “marijuana remains a controlled substance in Vermont and its sale is prohibited.” Although the state will not have a commercial system in place when legalization goes into effect in July, the state will utilize a commission to research the viability of a tax-and-regulate system.

The law makes it unlawful for those under 21 years of age to possess any marijuana or plants and does not allow for the consumption of marijuana in public places or by operators and passengers of motor vehicles. Schools, municipalities and landlords retain the right to adopt policies and ordinances that further restrict the cultivation and use of marijuana.

With respect to employers, the law expressly states, and the Guide reiterates, that the law should not be construed to do any of the following:

  • require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace;
  • prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
  • create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or
  • prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana on the employer’s premises.

The Guide addresses the conflict between the federal Controlled Substances Act, which classifies marijuana as a Schedule I drug and, thus, illegal under federal law, and Vermont’s marijuana laws. According to the Guide, Vermont law “only removes the possibility that individuals in Vermont would be prosecuted under state law for certain, minor recreational cultivation and use,” but “does not remove the possibility someone might nonetheless be prosecuted under federal law.”

With respect to medical marijuana, which has been legal in Vermont for several years, the Guide notes that while employers can “ban marijuana in the workplace and prohibit all employees from working while under the influence of marijuana,” employers may have a duty to accommodate medical marijuana users under Vermont’s Fair Employment Practices Act. The Guide goes on to remind employers of their general obligation to consider reasonable accommodations for employees suffering from drug and alcohol addiction, if the addiction qualifies as a disability under federal and state law, and provides an overview of Vermont’s drug testing law.

Vermont employers should consider (1) making clear that marijuana is still illegal under federal law and, thus, is considered an illegal drug under any applicable drug-free workplace policy, (2) taking steps to minimize the risks of negligent actions and safety concerns that may be caused by marijuana use, (3) understanding best practices for navigating federal and state disability discrimination laws for employees using medical marijuana or struggling with other substance abuse addictions, and (4) having conversations with drug testing vendors to determine how positive marijuana tests will be handled and reported where medical marijuana is approved. Vermont employers also should consider reviewing their drug and alcohol testing policy to ensure it complies with state requirements.