Preemployment Screening and Testing: Vermont
Federal law and guidance on this subject should be reviewed together with this section.
Author: Wanda I. Otero, Langrock Sperry & Wool, LLP
- Employers must be sure to comply with the Vermont Fair Credit Reporting Act. See Credit Checks.
- Background checks generally may be conducted only after a conditional offer is extended, but are mandatory for certain types of employment. See Criminal Background Checks.
- Vermont law prohibits private employers from asking criminal history questions on job applications. See Ban the Box.
- Vermont forbids the use of polygraph tests with certain exceptions. See Polygraph Tests.
- Employers may condition job offers on negative drug tests, but must ensure that the testing satisfies certain criteria. See Drug Testing.
- Vermont bans the use of HIV-related tests as a condition of employment. See AIDS Testing.
Vermont limits employers from using or inquiring into the credit reports of job applicants and employees. This credit check law, Vermont Act No. 154 (S. 95), also bans discrimination against applicants based on their credit information and applies to all employers in the state.
There are certain exceptions, however, that enable employers to inquire about or use credit information in making employment decisions. For instance, employers may obtain and use credit history about a job applicant or employee if they meet at least one of the following conditions:
- The position involves access to confidential financial information;
- The employer is financial institution or credit union as defined by Vermont law;
- The job being sought or held is that of a law enforcement officer, emergency medical personnel or a firefighter;
- The position requires a financial fiduciary responsibility to the employer, including the authority to issue payments, collect debts, transfer money or enter into contracts;
- The job involves access to an employer's payroll information;
- The employer can show that the credit information is a valid and reliable predictor of employee performance for that specific position; and
- The information is required by state or federal law or regulation.
Employers should note that even if one of the above exceptions applies, they must still obtain written consent each time they seek an applicant's or employee's credit report; disclose in writing their reason for accessing the applicant's credit report; and alert applicants or employees that they have the right to contest the accuracy of the credit report under Vermont law. In addition, the applicant's or employee's credit history cannot be the sole reason for denying employment, even if an exception applies.
In Vermont, employers that qualify for an exemption shall not require job candidates or employees to pay for the cost of obtaining a credit report. Employers that seek these reports also must ensure that the credit information is obtained in a confidential manner.
Criminal Background Checks
Employers are allowed to obtain criminal background checks from the Vermont Criminal Information Center (VCIC) only after a conditional employment offer has been made. A VCIC check includes the state sex offender registry. The applicant must provide written authorization on a release form provided by the VCIC, and the employer must maintain a current user's agreement with the center. +20 V.S.A. § 2056c.
Any individual, organization or governmental body that provides services to children, the elderly or persons with disabilities, as defined in +42 U.S.C. § 5119c, may also obtain a VCIC out-of-state criminal conviction record.
Criminal background checks and abuse registry checks are mandated for positions that involve providing care, custody, treatment, transportation or supervision of children or vulnerable adults as defined by statute. +33 VSA § 6902; +33 VSA § 6911.
Mandatory background checks also are required for any individual a Vermont public school district or approved independent school wishes to hire on a full-time, part-time or temporary basis.
The rule that a conditional offer must first be made to an applicant prior to conducting a criminal background check is subject to a single exception. To facilitate school districts' and supervisory unions' applications to receive certain federal funds, programs that are in and operated by public schools and provide school-age care before and after school hours are required, "as part of the hiring process," to screen all program staff members against the child abuse registry.
These programs also must perform a criminal records check of any staff member who is not currently a school employee or an employee of a school contractor already subject to a criminal record check. +33 V.S.A. § 3502.
Meanwhile, private investigative agencies and security services in Vermont may require criminal background checks of their employees. +26 V.S.A. § 3176.
Expunged Criminal Records
Effective July 1, 2019, a Vermont employer may not require a job applicant to provide information about criminal records that are expunged or sealed. If an employer does make such inquiries regarding expunged or sealed criminal records, the applicant may respond that no criminal record exists.
Ban the Box
Vermont prohibits private employers from asking criminal history questions on an initial job application. The measure is known as a "ban the box" law in reference to the box on job applications that prospective employees sometimes are asked to check off if they ever have been convicted of a crime. The state had already removed criminal history questions from its own job applications in 2015.
The law will not prevent employers in Vermont from asking about an applicant's criminal background during a job interview or later in the hiring process. However, an employer must give a prospective employee with a criminal history (if sill eligible for the position under applicable federal or state law) the opportunity to explain their past, including any post-conviction rehabilitation efforts. +21 V.S.A. §495j.
The Vermont Polygraph Protection Act, forbids the use of polygraph testing as a condition of employment. +21 V.S.A. §494(a). Specific exceptions include various municipal departments, employers selling precious metals or gems, employers manufacturing or selling regulated drugs, and any employer authorized or required by federal law to administer polygraph examinations. +21 V.S.A. §494b(1)-(4).
Employers may conduct drug testing of applicants only after making a conditional employment offer. Three conditions must be met:
- The prospective employee must be given written notice of the drug testing procedure and a list of the drugs to be tested;
- The notice must expressly state that therapeutic levels of medically-prescribed drugs tested will not be reported (notice may not be waived by the applicant); and
- The drug test must be administered in accordance with statutory criteria. +21 V.S.A. § 512.
Although Vermont has a medical marijuana law, +18 V.S.A. § 4471, the law does not require that employers accommodate the therapeutic use of marijuana by employees with certain illnesses. The law expressly states that it does not exempt a person from arrest or prosecution for possessing or being under the influence of marijuana in any public place including a workplace or place of employment. +18 V.S.A. § 4474c. The state's recreational marijuana law also does not require employers to provide an accommodation.
Marijuana Use for Recreational Purposes
Effective July 1, 2018, recreational use of marijuana is legal in Vermont. +2017 Bill Text VT H.B. 511. Under the law, a person 21 years or age or older may not be penalized by the state or its political subdivisions for possessing up to one ounce of marijuana or for growing a limited number of marijuana plants provided they are screened from public view.
However, the law prohibits a person from consuming marijuana in a public place (e.g., street, alley, park, public building) and in any place where smoking of a tobacco product or the use of tobacco substitutes is prohibited. See Employee Health: Vermont.
In addition, the law states that it does not:
- Prevent an employer from banning marijuana use in the workplace; or
- Require an employer to accommodate marijuana use.
Employers are allowed to request medical examinations only after making a conditional employment offer. The same medical examination must be required of all employees in the same job category, and the employer must pay for all costs. +21 V.S.A. § 301.
In addition, medical information must be kept confidential and must be placed in a separate file from the employee's regular personnel file. An employer may only deny the applicant a job if the medical examination discloses a condition that directly impacts the applicant's ability to do the job, even with a reasonable accommodation.
Vermont recognizes a cause of action for an employer's negligence in hiring an unfit employee. See Doe v. Newbury Bible Church, +2007 VT 72, +182 Vt. 174, +933 A.2d 196 (2007). Because Vermont recognizes this cause of action, employers should require that applicants authorize them to contact former employers and references listed on the employment application or on the applicant's resume. They also should contact former employers and references and document their responses. Employers must be careful, however, not to run afoul of an employee's privacy protections.
A Vermont employer may not, directly or indirectly, do any of the following as a condition of employment or allow any of the following to affect the terms, conditions or privileges of employment:
- Use the fact that genetic counseling or testing services have been requested or that genetic testing has been performed;
- Use genetic testing results or genetic information from a person or a member of a person's family;
- Use the diagnosis of a genetic disease derived from a clinical interview and examination, but not derived from the results of a genetic test; or
- Require genetic testing. +18 V.S.A. § 9333.
Any individual who intentionally violates Vermont's genetic testing law can be subject to a fine of up to $10,000, up to one year in prison, or both. +18 V.S.A. § 9335.
The Vermont Fair Employment Practices Act makes it illegal for an employer to discriminate against a job applicant on the basis of a positive test result from an HIV-related blood test. +21 V.S.A. § 495(a)(6). In addition, an employer may not require that an applicant, prospective employee or employee have an HIV-related blood test as a condition of employment. +21 V.S.A. § 495(a)(7).
The Act covers all public and private employers in the Green Mountain State, as well as labor unions and employment agencies.
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