Drug testing by employers in Vermont is governed by these state rules.
Vermont law contains different conditions relating to allowable drug testing for applicants and employees, as well as drug testing requirements applying to both applicants and employees.
Job Applicant Drug Testing
An employer cannot, as a condition of employment, require an applicant to submit to drug testing, administer such a test, or request or require an applicant to consent to any practice prohibited under Vermont's drug testing law unless the following conditions are met:
- The applicant has been given an offer of employment conditioned on the applicant receiving a negative test result.
- The applicant received written notice of the drug testing procedure and a list of the drugs to be tested. The notice must also state that therapeutic levels of medically-prescribed drugs tested will not be reported. The notice may not be waived by the applicant.
- The drug test is administered in accordance with other procedures specified in the law.
Employee Drug Testing
An employer cannot, as a condition of employment, promotion or change of status of employment, or as an expressed or implied condition of a benefit or privilege of employment, require an employee to submit to drug testing, administer such a test, or request or require an employee to consent to any practice prohibited under Vermont's drug testing law unless the following conditions are met:
- The employer or an agent of the employer has probable cause to believe the employee is using or is under the influence of a drug on the job.
- The employer has available for the employee tested a bona fide rehabilitation program for alcohol or drug abuse and such program is provided by the employer or is available to the extent provided by a policy of health insurance or under contract by a nonprofit hospital service corporation.
- The employee may not be terminated if the test result is positive and the employee agrees to participate in and then successfully completes the employee assistance program. However, the employee may be suspended only for the period of time necessary to complete the program, but in no event longer than three months. The employee may be terminated if, after completion of an employee assistance program, the employer subsequently administers a drug test and the test result is positive.
- The drug test is administered in accordance with certain procedures under the law.
An employer cannot request, require or conduct random or company-wide drug tests except when such testing is required by federal law or regulation.
Drug Testing Requirements
An employer cannot request or require that a blood sample be drawn for the purpose of administering a drug test. However, the person being tested may request that a blood sample be used for the purpose of administering a drug test.
If a urinalysis procedure is used to screen for drugs, the employer must do both of the following:
- The employer must require the laboratory performing the test to confirm any sample that tests positive by testing the sample by gas chromatography with mass spectrometry or an equivalent scientifically accepted method that provides quantitative data about the detected drug or drug metabolites.
- The employer must provide the person tested with an opportunity, at the person's request and expense, to have a blood sample drawn at the time the urine sample is provided. The sample must be preserved in such a way that it can be tested later for the presence of drugs.
The employer must designate a collector to collect specimens from job applicants and employees. A collector must be an individual certified by a U.S. Health and Human Services approved collector certification program for each type of specimen to be collected. A collector must also be recertified every three years. The collector may not be an employee of the employer for purposes of performing a drug test based on probable cause but may be an employee for purposes of collecting specimens from job applicants.
The employer's procedure for drug testing must incorporate all provisions of the drug testing law, including using only laboratories designated by the Department of Health.
An employer must contract with or employ a certified medical review officer who is a licensed physician with knowledge of the medical use of prescription drugs and the pharmacology and toxicology of illicit drugs. The medical review officer must review and evaluate all drug test results, assure compliance with the applicable laws, report the results of all tests to the individual tested, and report only confirmed drug test results to the employer.
The employer must provide all persons tested for drugs with a written policy that identifies the circumstances under which persons may be required to submit to drug tests, the particular test procedures, the drugs that will be screened, a statement that over-the-counter medications and other substances may result in a positive test and the consequences of a positive test result.
A medical review officer must contact personally an employee or applicant who has a positive test result and explain the results and why the results may not be accurate. The medical review officer must provide any applicant or employee who has a positive test result with an opportunity to retest a portion of the sample at an independent laboratory at the expense of the person tested and must consider the results of the retest.
Any health care information about an individual to be tested must be taken only by a medical review officer and is confidential and must not be released to anyone except the individual tested. The information may not be obtained by court order or process, except as provided by law.
Employers, medical review officers, laboratories, and their agents who receive or have access to information about drug test results, must keep all information confidential. Release of the information under any other circumstances must be solely pursuant to a written consent form signed voluntarily by the person tested, except where the release is compelled by a court of competent jurisdiction in connection with an action brought under Vermont's drug testing law.
A medical review officer must not reveal the identity of an individual being tested to any person, including the lab.