On January 22, 2018, Vermont Governor Phil Scott signed H. 511, allowing adults to possess recreational marijuana, making Vermont the first state in the nation to pass such a law in the legislature rather than at the ballot box. Vermont joins eight other states that have legalized recreational marijuana, as well as Washington D.C.  Nearly 30 states, including Vermont and Washington D.C., also have medical marijuana laws on the books. Polls show that most Americans favor legalizing marijuana at the national and local levels. An October 2017 Gallup poll found national support for legalization at the federal level to be at almost 64%.

This is not Vermont’s first attempt at passing a marijuana bill in the past year. Last spring, Governor Scott vetoed a bill legalizing marijuana for recreational use saying it did not adequately protect public safety, specifically calling out the need for more protections against adults driving while impaired and children’s access to marijuana.

Effective July 1, 2018, adults age 21 or older who possess one ounce or fewer of marijuana or five grams or fewer of hashish and two (or fewer) mature marijuana plants or four (or fewer) immature marijuana plants will not be penalized or sanctioned in any manner by the State. The law is silent, however, about creating a state market for recreational marijuana. In Governor Scott’s statement about the new law, he noted that “marijuana remains a controlled substance in Vermont and its sale is prohibited.” Although the state will not have a commercial system in place when legalization goes into effect in July, the state will utilize a commission to research the viability of a tax-and-regulate system.

The law makes it unlawful for those under 21 years of age to possess any marijuana or plants and does not allow for the consumption of marijuana in public places or by operators and passengers of motor vehicles.  Schools, municipalities and landlords retain the right to adopt policies and ordinances that further restrict the cultivation and use of marijuana.

With respect to employers, the law expressly states that it should not be construed to do any of the following:

  • 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 cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; 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.

Vermont employers should consider (1) making clear that marijuana is still illegal under federal law and, thus, is considered an illegal drug under any applicable drug-free workplace policy, (2) taking steps to minimize the risks of negligent actions and safety concerns that may be caused by marijuana use, and (3) having conversations with drug testing vendors to determine how positive marijuana tests will be handled and reported where medical marijuana is approved.