Act 86 makes it legal for those age 21 and over to possess up to an ounce of marijuana in Vermont, as well as grow six plants (two mature, four immature) at home. But what’s appropriate at work?
Vermont employers and employees are working to figure that out.
According to Heather Wright, a Burlington-based employment lawyer, not much.
VPR’s Henry Epp spoke with Wright. Listen to their conversation above.
“As a general rule, if an employer has a policy that prohibits employees from reporting to work under the influence of marijuana, that rule still applies and can still apply moving forward,” Wright said. “If they drug test their employees, including for the presence of marijuana, employers can still do that.”
When it comes to employee protections, Wright says Vermont’s laws generally protect employees from random drug screenings (unless they’re federal employees.)
“An employer can only drug test their employees if they have probable cause to do so. So for that, we're looking for objective behaviors, smells, slurring speech,” Wright explained. “If an employer is able to establish probable cause, there's then a very long list of steps that the employer has to go through — including maintaining a policy that talks about what substances will be tested informing the employee about that. They have to provide a way for the employee to access a rehabilitation program.”
The exception could be for federal employees — it’s important to note here that marijuana is still illegal under federal law. So if you work for a business that has federal contracts or are a federal employee, you’re likely required to comply with more restrictions in the workplace.
According to Wright, each employer can decide for themselves what's right for their business and employees based on their needs, industry, etc.
“For the most part, Vermont employers are allowed to take their own stance on what they do with drug use in the workplace,” said Wright. Most of the time that means “‘what you do on your own time is your own business. As long as you don't make it my business come Monday morning.’”
As long as employees are not showing up under the influence, Wright says most are “indifferent to what an employee does on their off hours.”
If an employee shows up under the influence, then that becomes an issue for the employer.
“Generally, employers are not required to accommodate an employee’s marijuana use if the accommodation requested is a request to come to work under the influence of marijuana, much like alcohol,” Wright said. “Now, when an employee discloses that they are using medical marijuana — so marijuana for medical purposes, not recreational — that can be seen from the employer perspective as the disclosure of a potential disability.”
Wright says the new law is a good opportunity for employers to review their current practices and policies and make sure leadership is up to date.