Vermont runs one of the more restrictive workplace drug testing statutes in the country. Instead of leaving the subject to case law or a patchwork of local rules, the legislature wrote a single subchapter, 21 V.S.A. sections 511 through 520, that spells out exactly when an employer may test an applicant, when it may test a current employee, how the sample has to be handled, and what happens after a positive result. A separate cannabis statute and a workers compensation intoxication provision sit alongside it. Employers who hire in Vermont, operate a branch there, or manage remote staff based in the state should read the primary source text before writing a policy. This article summarizes what those statutes say. It is general information, not legal advice.
The core statute: 21 V.S.A. Chapter 5, Subchapter 7
The definitions in 21 V.S.A. 511 matter more than they look. "Drug" is defined as any Schedule I substance under the federal Controlled Substances Act, plus a named list that includes amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine, methadone, opiates, oxycodone, phencyclidine, and several others, along with their metabolites and alcohol. The statute also defines a "designated laboratory" as one the Department of Health has approved, and a "collector" as an individual certified under a federal Health and Human Services collector certification program who, for a probable cause test, cannot be the employer's own employee. Every other section builds on these terms, so a policy that tests for a substance outside this list, or that uses an uncertified collector for a probable cause test, is already off the statute's rails.
Applicants: conditional offer first, then notice, then the test
21 V.S.A. 512 bars an employer or employment agency from requiring an applicant to take or submit to a drug test as a condition of employment, with one narrow exception. An employer may require applicant testing only if all three conditions are met: the applicant has already received a conditional offer of employment, contingent on a negative result; the applicant received written notice of the testing procedure and the list of drugs to be tested, including a statement that therapeutic levels of prescribed medication will not be reported as positive (a notice the applicant cannot waive); and the test is administered under the procedures in section 514. Testing before a conditional offer exists is not permitted under this statute.
Current employees: probable cause only, no random or company wide testing
21 V.S.A. 513 is the section most Vermont employers get wrong. It states plainly that an employer shall not request, require, or conduct random or company wide drug tests, except when federal law or regulation requires that kind of testing. Absent a federal mandate, testing a current employee requires probable cause to believe the employee is using or is under the influence of a drug on the job. Even then, the employer must have a bona fide rehabilitation program available (either employer provided or available through health insurance), and the employee cannot be terminated for a first positive result if the employee agrees to and completes that program, though the employee may be suspended for up to three months while completing it. A second confirmed positive, administered after completion of the program, can support termination.
How the test has to be run
21 V.S.A. 514 sets the administration requirements: the employer must give every person tested a written policy describing when testing happens, the procedures used, the drugs screened, and the fact that over the counter medications can produce a positive screen. Blood draws cannot be required for drug testing. Testing must go through a laboratory the Department of Health has designated, with a documented chain of custody. Any positive urinalysis screen must be confirmed at the laboratory using gas chromatography with mass spectrometry or an equivalent quantitative method, and a lab may only report a sample as positive if both the initial screen and the confirmation test agree. The tested person also has the right, at their own expense, to have a blood sample drawn and preserved at the same time for independent testing later.
Positive results route through a medical review officer
21 V.S.A. 515 requires a medical review officer to personally contact any applicant or employee with a positive result and explain the result, including reasons it might not be accurate, and to give that person the opportunity to have a portion of the sample retested at an independent laboratory at their own expense. This mirrors the screen-then-confirm structure used in federally regulated testing programs: a rapid immunoassay cup or dip card flags a presumptive positive, and only a laboratory confirmation reviewed by a medical review officer can support an adverse employment decision.
Confidentiality, employer authority, and enforcement
21 V.S.A. 516 limits collection of health information to the medical review officer, bars disclosure of test results except to the person tested or under a signed consent, and makes improperly disclosed results inadmissible in most proceedings. Separately, 21 V.S.A. 517 clarifies that none of this restricts an employer's authority to prohibit nonprescribed drug or alcohol use during work hours, or to discipline or dismiss an employee for being under the influence at work, outside of the rehabilitation protections in section 513. Laboratories must meet the designation standards in 21 V.S.A. 518, and 21 V.S.A. 519 allows a private right of action for injunctive relief, damages, costs, and attorney fees, with the employer bearing the burden of proving compliance with sections 513, 514, and 516. The State can also seek civil penalties of 500 to 2,000 dollars, and knowing violations can carry criminal fines or up to six months imprisonment. Section 520 has been repealed.
Cannabis: legal to possess, no duty for an employer to accommodate it
Vermont allows adults 21 and older to possess small amounts of cannabis under 18 V.S.A. 4230a, but the same section states clearly, in subsection (e), that nothing in it requires an employer to permit or accommodate the use, possession, display, transfer, or growing of cannabis in the workplace, prevents an employer from adopting a policy that prohibits workplace cannabis use, creates a cause of action against an employer that discharges an employee for violating such a policy, or prevents an employer from regulating cannabis on its premises. In short, legalization changed what the State can prosecute; it did not create a right to be under the influence of cannabis at work, and it did not override the testing limits in sections 512 and 513 above. An employer that wants to test for cannabinoids still has to follow the same conditional offer, notice, probable cause, and confirmation rules that apply to any other drug on the section 511 list.
Workers compensation and intoxication
21 V.S.A. 649 states that workers compensation is not payable for an injury caused by an employee's willful self-injury, injury to another, intoxication, or failure to use a provided safety appliance, and places the burden of proof on the employer that asserts this defense. A properly confirmed drug test, run and documented the way sections 513 through 515 describe, is the kind of evidence an employer would need to support an intoxication defense in a contested claim. Employers should confirm current statute text and talk to counsel before relying on a positive test to deny a claim, since this is a fact specific defense the employer has to prove.
Comparing the testing tracks
| Question | Applicant testing (512) | Current employee testing (513) |
|---|---|---|
| When testing is allowed | Only after a conditional offer of employment, with written notice of procedure and drugs tested | Only on probable cause of on the job use or impairment, unless federal law requires testing |
| Random or company wide testing | Not addressed by this section | Prohibited, except where federal law or regulation mandates it |
| First positive result | May support withdrawal of the conditional offer | Cannot support termination if employee agrees to and completes a rehabilitation program; suspension capped at three months |
| Confirmation requirement | Mandatory GC/MS or equivalent confirmation under section 514 | Same confirmation standard applies |
| Medical review officer role | Contacts the applicant on a positive result and offers a retest opportunity under section 515 | Same process applies to employees |
Practical steps for employers
A Vermont testing program has to be built around the conditional offer and probable cause structure, not around convenience. Applicant testing should happen only after an offer has been extended and conditioned on a negative result, with the written notice required by section 512 given before the test, not after. Random and company wide testing of current employees should be avoided entirely unless a specific federal rule, such as Department of Transportation safety sensitive testing under 49 CFR Part 40, applies to the role. Any screening cup, dip card, or oral fluid device used on site should route a presumptive positive to a Department of Health designated laboratory for gas chromatography and mass spectrometry confirmation and medical review officer verification before any personnel action is taken, exactly as sections 514 and 515 require. Employers should also document that a bona fide rehabilitation program is available before relying on the probable cause exception in section 513, since the statute makes that program a precondition, not an afterthought.
For related background, see our explainer on what employers can still do in marijuana legal states and our overview of workers comp drug testing premium discount programs. American Screening Corporation supplies drug test cups and related screening products for employers building a documented, confirmation backed testing program.
Frequently asked questions
Can a Vermont employer require a drug test before making a job offer?
No. 21 V.S.A. 512 only allows applicant testing after a conditional offer of employment has already been extended, contingent on a negative result, and after the applicant received written notice of the testing procedure and the drugs to be tested.
Does Vermont allow random drug testing of current employees?
Generally no. 21 V.S.A. 513 prohibits random or company wide testing of current employees unless federal law or regulation requires it. Otherwise, testing a current employee requires probable cause to believe the employee is using or impaired by a drug on the job.
Can a Vermont employee be fired for a first positive drug test?
Not automatically. Under 21 V.S.A. 513, an employee cannot be terminated for a first positive result if a bona fide rehabilitation program is available and the employee agrees to and completes it, though a suspension of up to three months is allowed. A later confirmed positive, after completing the program, can support termination.
Do Vermont employers have to accommodate marijuana use at work?
No. 18 V.S.A. 4230a(e) states that legal possession of cannabis does not require an employer to permit or accommodate its use in the workplace, does not stop an employer from adopting a policy prohibiting workplace use, and does not create a cause of action against an employer that discharges an employee for violating such a policy.
What confirmation is required before a positive result can support discipline?
21 V.S.A. 514 requires that any positive screening result be confirmed by the laboratory using gas chromatography with mass spectrometry or an equivalent quantitative method, and 21 V.S.A. 515 requires a medical review officer to contact the person tested and offer a retest opportunity before the result is used.
Can a positive drug test affect a Vermont workers compensation claim?
21 V.S.A. 649 states that compensation is not payable for an injury caused by intoxication, but the employer carries the burden of proving that defense. Employers should confirm current statute text and talk to counsel about how properly confirmed testing applies to a specific claim.
This article is general information about Vermont statutes as a manufacturer and supplier of drug testing products understands them, not legal advice. Employers should consult the current statute text at legislature.vermont.gov and their own counsel before adopting or changing a testing policy.
