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Marijuana legalization could rewrite employee drug-testing rules

By   /   February 11, 2016  /   News  /   No Comments

Photo by Michael Bielawski

From left to right, Sens. Bill Doyle, R-Washington, Ann Cummings, D-Washington, Becca Balint, D-Windham, and Kevin Mullin, R-Rutland, listen to testimony from Emily Amanna of Vermont Homegrown regarding marijuana legalization.


MONTPELIER, Vt. – Pot legalization will change the way employers screen new hires. Lawmakers are trying to decide exactly how.

Last week, the Senate Committee on Economic Development, Housing and General Affairs examined what may happen to workplace drug testing if pot is legalized in Vermont.

Under current federal standards, employers can test for drug use only when hiring an employee. The only exception is commercial driver’s license holders, who can be tested randomly.

In Colorado, however, where pot is legal, the state Supreme Court, in Coats v. Dish Networks, upheld a statue that says employers may fire employees for marijuana use because federal law prohibits the drug. The conflicting standards reveal challenges states face in trying to make marijuana use legal in recreational settings but unacceptable on the job.

During Friday’s hearing, state Sen. Ann Cummings, D-Washington, warned that legalizing marijuana in Vermont could require changes to drug testing.

“One of the big civil liberty concerns about drug testing is that generally those drugs are illegal,” she said. “Once marijuana is not illegal, I’m wondering if some of that concern will go away.”

Another problem, Cummings said, arises from not knowing when a person smoked pot.

“The concern we heard from Bellavance Trucking was, for example, they had worker who had been in an accident. Clearly it was not the driver’s fault; someone pulled out right in front of him. But he tested positive even though (his marijuana use) was up to 10 days (prior). You can’t determine that he was impaired, but they are going to be found liable because of their driver,” she said.

Pat Moulton, secretary of the Agency of Commerce and Community Development, testified that one solution would be to allow testing following a workplace accident – a provision currently followed in Colorado.

Committee Chair state Sen. Kevin Mullin, R-Rutland, said that solution may create other problems.

“It might actually make it worse, though. … What happens if now you have an employee file, and your employer tests you and they find (THC from marijuana), and then there’s a crack-down by the feds? Then, basically, that file would incriminate you.”

Gwynn Zakov, the municipal policy advocate for the Vermont League of Cities and Towns, suggested more employment-related drug testing, combined with marijuana legalization, could make it difficult for employers to fill jobs. She added the VLCT board voted against legalization of marijuana in part due to this concern.

“I’m just looking at in terms of pre-employment testing and in terms of it being more widely used – and it stays in the body longer. It’s really hard for municipalities to hire for some of these positions already,” Zakov said. “We don’t have the ability to hire for jobs that are at the highest pay scale to begin with. To not have a workforce that is able to have these tests, it really infringes on a municipality’s ability to hire.”

Emily Amanna, a representative of Vermont Home Grown, a pro-cannabis group, urged committee members to let local growers to benefit from legalization.

“This is a tremendous opportunity for the agriculture community, she said. “The concern is the details of the bill, as it stands now, exclude small farms like mine from participating and benefiting from this agricultural product. Instead, it hands the entire industry over to a select few.”

While Amanna said lawmakers should amend the bill to add a license for small producers.

Following the meeting, Cummings told Vermont Watchdog she sees a benefit to opening legalization to small local growers.

“I hear their concern about how we won’t do away with the black market (without small producers), and I think they’re right,” she said. “I don’t think we can (have) unlimited licenses, but I also know that the very limited approach is very important to the Judiciary Committee. It will be difficult to do anything without their support. We might be able to make some small inroads or give a time frame maybe in a year or two to allow that.”

Bill Lofy, spokesman for the Vermont Cannabis Collaborative, said marijuana would be a job-creator for Vermont. According to Lofy, Vermonters consume up to 55,000 pounds, or $185 million, of marijuana per year. Legalization, Lofy added, could create between 3,000 and 5,000 new jobs for Vermont and a 10 percent to 20 percent boost in tourism.

CLARIFICATION: This article was updated at 2:50 p.m., Feb. 18 to clarify the ruling of the Colorado Supreme Court in Coats v. Dish Networks.

Contact Michael Bielawski at [email protected]


Michael Bielawski is a freelance reporter for Vermont Watchdog. A Seton Hall 2005 graduate, Bielawski has been writing articles for various publications in and around New York City, Seoul in South Korea, and Vermont for ten years. He’s a staff writer at the Hardwick Gazette, keeping track of rising school budgets and rural Vermont issues. He likes to write about energy and the environment, looking for angles not seen in mainstream media. At home he’s busy looking after two little boys, and during free, time loves to watch Stanley Kubrick films on Netflix. He can be reached at [email protected]