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Vermont Employers Prepare for Legal Pot

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Many "want ads" in Vermont note that prospective hires must pass a drug-screening test. Potential school bus drivers, air traffic controllers, postal workers and construction workers have long had to provide urine samples to prove they aren't under the influence of substances that could impair their judgment.

But what happens when recreational marijuana becomes legal in Vermont on July 1? Although the new law does not require Vermont employers "to permit or accommodate" its use in the workplace, some businesses are considering their options — both for preemployment screening and overall personnel policies regarding marijuana.

"We're just starting to hear from companies asking, 'Can marijuana be backed out of the [testing] panel?'" said Kelly Casale, director of operations at Concentra in South Burlington, a clinic that charges employers about $93 to test for opioids, amphetamines, cocaine, PCP and marijuana.

Her answer is a qualified yes: Employers should first check with their attorneys about what, if any, testing is required under applicable law. The federal government requires drug screening for many positions, and that won't change in Vermont. Marijuana remains illegal under U.S. law.

"It's going to be such a can of worms," predicted Gina Cantanzarita, president of the Vermont Human Resources Association and director of HR at Engelberth Construction in Colchester. "I think everybody's kind of like, 'What are we going to do?'"

Engelberth currently sends prospective employees to Concentra for drug tests, as well as for required preemployment physicals. The construction company opts to test for marijuana in an effort to promote a safe, drug-free workplace, Cantanzarita said. Every prospective employee who would work in the field, from laborers to engineers, must pass the screening.

"Obviously, we're in construction, and you want to make sure you have the most qualified, safest people on your sites," said Cantanzarita.

Although recreational marijuana legalization has prompted the company to review its policies related to drug screening, Engelberth intends to continue testing for marijuana even after July 1.

A Vermont law passed in 1987 still regulates how it's done. Shaped by civil libertarians, the statute allows prospective hires to be tested after they have been offered a job, as a condition of employment. But it forbids random drug testing of employees on the job unless mandated by federal law or regulations.

Company managers can test an employee if they believe there is probable cause of drug use that affects performance. But if the results are positive, the worker can't be summarily fired. The company has to first give the individual an opportunity to participate in an employee assistance or rehab program. If that doesn't work, a drug test failure can trigger termination.

In part because of those employee protections, many Vermont employers don't test as a condition of employment unless the feds require it, according to Burlington employment lawyer Heather Wright. Jobs for which you need a commercial driver's license, for example, are subject to testing for drugs, including marijuana.

Companies that do voluntarily test tend to be construction firms and manufacturing businesses that, like Engelberth, have safety concerns. Testing reduces the risk of hiring employees with serious drug issues to work on construction sites where error can result in significant injury or even death, according to Cantanzarita. When potential hires fail, marijuana is the most common reason, and "they don't get the job," she said, adding that preemployment screening does not eliminate the occasional alcohol or drug issue from surfacing on the job.

Other executives were more secretive about their methods for identifying impaired workers. Does Mack Molding, one of Vermont's largest and oldest manufacturers, screen its employees for marijuana? Director of communications Larry Hovish declined to answer.

But he did acknowledge that with legalization looming, executives were going to discuss testing and HR strategies at quarterly management meetings this week.

"We don't have much to say at the moment," Hovish said from the company's Arlington campus last Friday.

Officials at Green Mountain Power, where drug testing is routine for prospective linemen, had no comment, either.

Testing isn't the only issue. The new law could trigger an increase in pot use, and more employees might report to work under the influence of marijuana, Wright said.

"Vermont employers are still allowed to prohibit employees from coming to work under the intoxication of marijuana, even if it is considered a legal substance," Wright said, referring to the new state law.

Soon, though, they can also choose to turn a blind eye to a bong-hit breakfast. "I took a call this week from a client who said, 'We actually don't care if our employees come to work under the influence, as long as they do their job,'" Wright said.

Her advice for employers: Identify and clarify your expectations "so that there isn't any confusion" among employees.

In other states where marijuana is legal, some companies have stopped discretionary drug testing, in part because it's more difficult to find pot-free workers, according to national reports. Vermont's 2.8 percent unemployment rate is among the lowest in the county. Cantanzarita said Engelberth is always looking for carpenters, estimators and other workers.

Will continuing to test for marijuana after July 1 make it even harder to hire? She doesn't think so.

Everyone who wants to smoke pot is probably already doing it, she reasoned.

Paul Clancy, terminal manager for Mountain Transit in Milton, which transports about 3,000 kids a day on school buses, agreed.

His drivers are required to have a commercial license, and the company must follow federal rules that require both preemployment drug testing and random testing on the job.

The drivers know that every so often, their name will come up for a surprise drug test, and they will be required to pee into a cup at the company terminal in Milton.

"All of a sudden, you get called and you gotta go," he said.

If the results come back positive, that employee is not just out of a job; anyone who drives for a job knows the risks of drug use, Clancy said.

"This is an easy equation," Clancy added. "If you test hot, you're gonna end up losing a bunch of licenses."

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