Title 21: Labor

Chapter 5: EMPLOYMENT PRACTICES

21 V.S.A. § 511. Definitions

§ 511. Definitions

As used in this subchapter:

(1) "Applicant for employment" means an individual seeking or being sought for employment with an employer.

(2) "Designated laboratory" means a laboratory designated by the department of health under section 518 of this title.

(3) "Drug" means a drug listed or classified by the U.S. Drug Enforcement Administration as a Schedule I drug, or its metabolites, and alcohol. It shall also mean other drugs or their metabolites which are likely to cause impairment of the individual on the job, which are: amitriptyline, amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine, doxepin, glutethimide, hydromorphone, imipramine, meperidine, methadone, methaqualone, opiates, oxycodone, pentazocine, phenytoin, phencyclidine, phenothiazines, and propoxyphene. In addition, the commissioner of health may, pursuant to chapter 25 of Title 3, add drugs to this list not recognized as being commonly abused and likely to cause impairment of the employee on the job at the time of the passage of this act.

(4) "Drug test" means the procedure of taking and analyzing body fluids or materials from the body for the purpose of detecting the presence of a regulated drug as defined in chapter 84 of Title 18 or a drug as defined in subdivision (4) of this section.

(5) "Employee" means any person who may be permitted, required or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.

(6) "Employer" means any individual, organization, or governmental body including partnership, association, trustee, estate, corporation, joint stock company, insurance company or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air or express company doing business in or operating within this state, which has one or more individuals performing services for it within this state, or which has offered or may offer employment to one or more individuals.

(7) "Employment agency" means a person who undertakes, with or without compensation, to procure, refer, recruit or place for an employer or person, the opportunity to work for an employer.

(8) "Collector" means an individual certified by a United States Health and Human Services approved collector certification program for each type of specimen to be collected. A "collector" shall be recertified every three years and may not be an employee of the employer for the purposes of performing a drug test based on probable cause. (Added 1987, No. 61, § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 1, eff. May 1, 2002.)

§ 512. Drug testing of applicants; prohibitions; exceptions

(a) General prohibition. Except as provided in subsection (b) of this section, an employer or an employment agency shall not, as a condition of employment, do any of the following:

(1) Request or require that an applicant for employment take or submit to a drug test.

(2) Administer or attempt to administer a drug test to an applicant for employment.

(3) Request or require that an applicant for employment consent, directly or indirectly, to a practice prohibited under this subchapter.

(b) Exception. An employer may require an applicant for employment to submit to a drug test only if all of the following conditions are met:

(1) Conditional offer of employment. The applicant has been given an offer of employment conditioned on the applicant receiving a negative test result.

(2) Notice. The applicant received written notice of the drug testing procedure and a list of the drugs to be tested. The notice shall also state that therapeutic levels of medically-prescribed drugs tested will not be reported. The notice required under this subdivision may not be waived by the applicant.

(3) Administration. The drug test is administered in accordance with section 514 of this title. (Added 1987, No. 61, § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 2, eff. May 1, 2002.)

§ 513. Drug testing of employees; prohibitions; exceptions

(a) General prohibition. Except as provided in subsection (c) of this section, an employer shall not, 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, do any of the following:

(1) Request or require that an employee take or submit to a drug test.

(2) Administer or attempt to administer a drug test to an employee.

(3) Request or require that an employee consent, directly or indirectly, to a practice prohibited under this subchapter.

(b) Random or company-wide tests. An employer shall not request, require or conduct random or company-wide drug tests except when such testing is required by federal law or regulation.

(c) Exception. Notwithstanding the prohibition in subsection (a) of this section, an employer may require an individual employee to submit to a drug test if all the following conditions are met:

(1) Probable cause. 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.

(2) Employee assistance program. 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.

(3) Employee may not be terminated. 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 in compliance with subdivisions (1) and (4) of this subsection and the test result is positive.

(4) Administration of test. The drug test is administered in accordance with section 514 of this title. (Added 1987, No. 61, § 1, eff. Sept. 1, 1987.)

§ 514. Administration of tests

An employer may request an applicant for employment or an employee to submit to a drug test pursuant to this subchapter, provided the drug testing is performed in compliance with all the following requirements:

(1) Drugs to be tested. The test shall be administered only to detect the presence of alcohol or drugs, as defined in subdivision 511(3) of this title, at nontherapeutic levels.

(2) Written policy. The employer shall provide all persons tested 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. The employer's policy shall incorporate all provisions of this section.

(3) Blood samples. An employer may not request or require that a blood sample be drawn for the purpose of administering a drug test.

(4) Designated laboratory. The employer shall use only a laboratory designated by the department of health.

(5) Chain of custody. The collector shall establish a chain of custody procedure for both sample collection and testing that will assure the anonymity of the individual being tested and verify the identity of each sample and test result.

(6) Urinalysis procedure. If a urinalysis procedure is used to screen for drugs, the employer shall:

(A) 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; and

(B) provide the person tested with an opportunity, at his or her request and expense, to have a blood sample drawn at the time the urine sample is provided, and preserved in such a way that it can be tested later for the presence of drugs.

(7) Laboratory reports. A laboratory may report that a urine sample is positive only if both the initial test and confirmation test are positive for the particular drug. Test results shall only be provided by written report in accordance with subdivision (9) of this section.

(8) Negative test results. The detection of a drug at a therapeutic level as defined by the commissioner of health shall be reported as a negative test result. The laboratory's report shall not contain any information indicating the presence of a drug at a therapeutic level as defined by the commissioner.

(9) Information to be supplied. The laboratory shall provide the medical review officer with a written report of the drug test result. The medical review officer shall review the report, and discuss the results and options available with the individual tested. The written report shall include all of the following information:

(A) The unique identifier code of the person tested.

(B) The type of test conducted for both initial screening and confirmation.

(C) The results of each test.

(D) The detection level, meaning the cut-off or measure used to distinguish positive and negative samples, on both the initial screening and confirmation procedures.

(E) The name and address of the laboratory.

(F) Any other information provided by the laboratory concerning that person's test.

(10) Preservation of samples. The collector shall ensure that a portion of any positive sample is preserved in a condition that will permit accurate retesting for a period of not less than 90 days after the person tested receives the result.

(11) Medical review officer. The employer shall contract with or employ a certified medical review officer who shall be a licensed physician with knowledge of the medical use of prescription drugs and the pharmacology and toxicology of illicit drugs. The medical review officer shall review and evaluate all drug test results, assure compliance with this section and sections 515 and 516 of this title, report the results of all tests to the individual tested, and report only confirmed drug test results to the employer.

(12) Collector. The employer shall designate a collector to collect specimens from job applicants and employees. The collector may be an employee for the purposes of collecting specimens from job applicants. The collector may not be an employee for the purposes of collecting specimens from employees for drug testing based on probable cause. (Added 1987, No. 61, § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 3, eff. May 1, 2002.)

§ 515. Positive test results; opportunity to retest

(a) A medical review officer shall contact personally an employee or applicant who has a positive test result and explain the results and why the results may not be accurate.

(b) The medical review officer shall 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 shall consider the results of the retest. (Added 1987, No. 61, § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 4, eff. May 1, 2002.)

§ 516. Confidentiality

(a) Any health care information about an individual to be tested shall be taken only by a medical review officer and shall be confidential and shall not be released to anyone except the individual tested, and may not be obtained by court order or process, except as provided in this subchapter.

(b) Employers, medical review officers, laboratories and their agents, who receive or have access to information about drug test results, shall keep all information confidential. Release of such information under any other circumstance shall be solely pursuant to a written consent form signed voluntarily by the person tested, except where such release is compelled by a court of competent jurisdiction in connection with an action brought under this subchapter. A medical review officer shall not reveal the identity of an individual being tested to any person, including the laboratory.

(c) If information about drug test results is released contrary to the provisions of this subchapter, it shall be inadmissible as evidence in any judicial or quasi-judicial proceeding, except in a court of competent jurisdiction in connection with an action brought under this subchapter. (Added 1987, No. 61, § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 5, eff. May 1, 2002.)

§ 517. Employer's authority

This subchapter shall not restrict an employer's authority to prohibit the nonprescribed use of drugs or alcohol during work hours, or restrict an employer's authority to discipline, suspend or dismiss an employee for being under the influence of drugs or alcohol during work hours, except as that authority is restricted under subsection 513(c)(3) of this title in reference to participation in an employee assistance program or suspension. (Added 1987, No. 61, § 1, eff. Sept. 1, 1987.)

§ 518. Designated laboratory; rule making authority of the commissioner

(a) The department of health shall designate laboratories to test body fluids or materials for drugs. Such laboratories must be able to document competency in regard to personnel, quality assurance programs, methodology and equipment, on site confirmation of positive screening tests, security, confidentiality and expert testimony.

(b) A laboratory that fails to comply with the provisions of this subchapter relating to the confirmation and reporting of test information and the release of confidential information shall lose its designation under this subsection.

(c) The commissioner of health shall adopt rules pursuant to chapter 25 of Title 3 establishing nontherapeutic levels of therapeutic drugs by establishing a range of values considering average medical use for each particular drug or metabolite authorized to be tested under this subchapter. (Added 1987, No. 61.)

§ 519. Enforcement

(a) Private right of action. An applicant or employee aggrieved by a violation of this subchapter may bring a civil action for injunctive relief, damages, court costs and attorney's fees.

(b) Burden of proof. In a private right of action alleging that an employer has violated this subchapter, the employer has the burden of proving that the requirements of sections 513, 514 and 516 of this title have been satisfied. In any civil action alleging that a laboratory has violated the reporting or confidentiality sections of this subchapter, the laboratory shall have the burden of proving that the requirements of sections 514 and 516 of this title have been satisfied.

(c) State action to obtain civil penalty. A person who violates any provision of this subchapter shall be subject to a civil penalty of not less than $500.00 nor more than $2,000.00.

(d) State action to obtain criminal penalty. A person who knowingly violates any provision of this subchapter shall be fined not less than $500.00 nor more than $1,000.00 or shall be imprisoned not more than six months, or both. (Added 1987, No. 61, § 1, eff. Sept. 1, 1987.)

§ 520. Transitory provisions

(a) On or before July 1, 1989, the commissioner of health pursuant to chapter 25 of Title 3 shall set nontherapeutic levels of therapeutic drugs by establishing a range of values by considering average medical use for each particular drug or metabolite authorized to be tested under this subchapter.

(b) Until July 1, 1989, the test shall be administered to detect the presence of alcohol or drugs as defined in subdivision 511(3) of this title. Sections 514(1) and 514(8) of this title insofar as they apply to testing only for nontherapeutic levels shall not take effect until July 1, 1989.

(c) Until July 1, 1989, if an applicant receives a positive test result and has a valid predated prescription for the drug tested, the positive test result may not in and of itself be sufficient reason for not hiring an applicant. Until July 1, 1989, if an employee receives a positive test result and has a valid predated prescription for the drug tested, the positive test result may not in and of itself be sufficient reason for requiring that the employee participate in an employee assistance program or for disciplining or dismissing the employee.

(d) The commissioner of health on or before January 15, 1989 shall issue a progress report to the house and senate committees on general affairs on the ability of the commissioner to comply with subsection (a) of this section. (Added 1987, No. 61, eff. May 22, 1987.)