Amy M. McLaughlin, Kendall Hoechst, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Jeff Nolan
Soon, it will be legal in Vermont for people who are 21 or older to possess limited quantities of marijuana and marijuana plants. You may be wondering whether the new law affects your ability to enforce rules on smoking or the use of drugs in your workplace. In short, the answer is, nope. In crafting the law, the Vermont Legislature specifically addressed workplace issues and made clear that the law doesn’t require employers to change their policies or permit the use or possession of marijuana at work.
General provisions of the law
The new law, titled “An act relating to eliminating penalties for possession of limited amounts of marijuana by adults 21 years of age and older,” was signed by Governor Phil Scott on January 22, 2018. The portions of the law relevant to our discussion will go into effect on July 1. The law defines “marijuana” as “all parts of the plant,” including seeds, resin, and compounds derived from the plant, its seeds, or its resin, but not mature stalks, hemp, or other excluded parts.
As of July 1, 2018, individuals who are 21 years old or older will be permitted to possess up to one ounce of marijuana or five grams of hashish, and cultivate up to two mature marijuana plants or four immature marijuana plants. Criminal penalties apply if a person possesses more than is allowed by those limits. The criminal penalties increase with second and third offenses, and with larger amounts of marijuana.
The law prohibits the consumption of marijuana in a “public place,” which is defined as “any street, alley, park, sidewalk, public building other than individual dwellings, any place of public accommodation [as defined in the Vermont Public Accommodations Act, or VPAA], and any place where the use or possession of a lighted tobacco product, tobacco product, or tobacco substitute . . . is prohibited by law.”
The law doesn’t protect people who possess or consume marijuana from laws related to driving under the influence of marijuana or consuming marijuana while driving, it doesn’t limit the authority of primary or secondary schools to impose administrative penalties for the possession of marijuana on school property, and it doesn’t prohibit landlords from, among other things, banning the possession or use of marijuana in lease agreements.
Provisions of particular interest to employers
Some provisions of the law actively prohibit marijuana use in workplaces, while others explicitly allow employers to continue to regulate whether marijuana can be possessed or used on their premises.
In terms of active prohibitions, as noted above, the law prohibits the “consumption” of marijuana in a “public place,” which includes “any place of public accommodation as defined in” the VPAA. The definition of “public accommodation” in the VPAA is broad and includes “any school, restaurant, store, establishment, or other facility at which services, facilities, goods, privileges, advantages, benefits, or accommodations are offered to the general public.” That means people will still be prohibited from consuming marijuana in a workplace that falls within that definition, regardless of the employer’s policies.
Similarly, the law actively prohibits the consumption of marijuana in “any place where the use or possession of a lighted tobacco product, tobacco product, or tobacco substitute” is prohibited by law. As Vermont employers know, Vermont law generally prohibits, with some exceptions, smoking in “an enclosed structure where employees perform services for an employer.” That means people are not permitted to consume marijuana in the vast majority of workplace settings that are not specifically exempted from the law prohibiting smoking in the workplace.
The new pot law also reserves for employers the ability to continue to regulate the possession or use of marijuana on the job. Specifically, the law provides that none of its provisions should be construed to:
- 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 claim against an employer that terminates an employee for violating a policy that restricts or prohibits employees’ use of marijuana; 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.
Those provisions mean you are essentially free to maintain or create policies that prohibit the possession, consumption, sale, or cultivation of marijuana and terminate employees who violate your policies, and the law doesn’t create a method by which employees can sue you for doing that (known as a “private right of action”).
It should be noted that the marijuana law doesn’t mention Vermont’s drug-testing law. As Vermont employers know, the drug-testing law places strict limitations on when and how employees can be subjected to drug testing. Those restrictions must continue to be observed carefully, and you shouldn’t view the legalization of marijuana as permission to conduct more stringent drug testing that isn’t allowed by the drug-testing law. On the other hand, if you permissibly test an employee and the result is positive for marijuana use in violation of your policies, the marijuana law wouldn’t prevent you from taking action under your policies to the extent permitted by the drug-testing law.
The medical marijuana/disability issue is also worth noting. Employment disputes involving medical marijuana usually revolve around questions of whether the use of marijuana is “lawful.” The use of medical or recreational marijuana remains unlawful under federal law, regardless of Vermont’s new marijuana law. So if an employee appears to be under the influence of marijuana at work, you can take action even if the employee is authorized to use medical marijuana.
However, if an employee tests positive for marijuana use through a drug test, there’s no question about whether he’s impaired at work, and he explains that he uses marijuana for medical reasons, it would be worthwhile to consult legal counsel about the best way to arrive at a practical solution that could resolve the issue while respecting any safety-related requirements of the employee’s job and your worksite. (For more on Vermont’s medical marijuana law, see “Employers’ medical marijuana rights, obligations under Vermont law” on pg. 1 of our February 2016 issue.)
Many employers have enacted policies that prohibit the possession, consumption, or distribution of “illegal drugs” but do not mention marijuana specifically or list all of the drugs that are prohibited. As we noted above, marijuana remains an illegal drug under federal law. The new Vermont marijuana law eliminates only state-law penalties for the possession and use of marijuana within certain parameters. Therefore, a policy that references “illegal drugs” would still technically be effective. However, if you want to clarify the point and avoid after-the-fact policy interpretation arguments with your employees, you may wish to specifically identify marijuana as a prohibited substance in your policies.
It’s good to see that lawmakers were thinking of Vermont employers when they crafted the new marijuana law and eliminated some potential questions before they could even be asked. In sum, if your organization prohibits the possession, use, and distribution of marijuana on the job, it will be business as usual. That shouldn’t be surprising since employers can obviously prohibit the use of legal substances such as alcohol in the workplace, and the liberalization of marijuana laws shouldn’t affect employer discretion on safety-related issues.
If you don’t have explicit policies addressing marijuana use but anticipate that you may be asked about your stance in light of the new law, you should consider creating some policy language clarifying your organization’s position on marijuana use, particularly in workplace areas covered by the law prohibiting smoking in the workplace and in places of public accommodation. Then, if an employee asks to use pot at work and tells you that you can’t prohibit it under the new law, you can say with confidence: “Dude, you must be high! Read the policy!”
Jeff Nolan can be reached at firstname.lastname@example.org or 802-864-5751.