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Vermont’s New Marijuana Law Goes Into Effect on July 1. Employers, Unions, Schools and Landlords: Get Ready!

May 14, 2018 by Stephen D. Ellis and Christina Rainville, Ellis Boxer & Blake PLLC, Burlington and Springfield*

When Vermont’s new marijuana law (“Act 86”) goes into effect on July 1, 2018, anyone in Vermont over the age of 21 will be able to possess and cultivate small amounts of marijuana and hashish without risking criminal prosecution.  The stated intent of the new law is to “to eliminate all penalties for possession of one ounce or less of marijuana and two mature and four immature marijuana plants for a person who is 21 years of age or older while retaining criminal penalties for possession, dispensing, and sale of larger amounts of marijuana.”  Provisions in the new that attempt to clarify its impact on employers and employees, schools and municipalities, and tenants and landlords are fairly complex and leave open some questions which may need to be resolved by the courts.  Prudent Vermont employers, unions, schools, municipalities, and landlords should review their policies, ordinances and lease agreements – ideally before the new law goes into effect-- to clearly describe the parameters of permitted use or possession of marijuana.

For example, the new law states that it does not “require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace,” and does not “create a cause of action against [i.e., a right to sue] an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees.” But does it create a cause of action for firing an employee for the mere possession of marijuana at work, even if the employee is not using or consuming it?  Or against an employer who discharges an employee for using marijuana at work, but has no written policy addressing marijuana?  The answer to both questions is almost certainly “No,” since recognizing such a cause of action would effectively require the employer to permit the use and possession of marijuana in the workplace, which the law says it does not do.  Nevertheless, clear written policies that specifically address the use and possession of marijuana will avoid misunderstanding and uncertainty, even though they may not be strictly required.

May Vermont employers lawfully fire an employee for possessing or using marijuana away from work and off duty, with or without a written policy?  How about for the transportation, sale or cultivation of marijuana away from work?  The new law does not specifically address these questions, which implicate existing law relating to privacy rights and the “public policy” exception to the at-will employment doctrine.  Employers who wish to regulate employee conduct away from work should tread carefully, with the guidance of experienced legal counsel. 

Schools and municipalities should pay particular attention.  The new law prohibits use of marijuana in “public places” and at child care facilities and after-school programs while children are present.  It does not “limit the authority of primary and secondary schools to impose administrative penalties for the possession of marijuana on school property,” and does not “prohibit a municipality from adopting a civil ordinance to provide additional penalties for consumption of marijuana in a public place.”  Schools and municipalities that wish to regulate the possession and use of marijuana on school or public property should review and revamp their policies and ordinances.

Landlords have additional considerations.  The law allows the residential cultivation of two mature marijuana or four immature plants, as well as storing the leaves that are harvested from those plants, as long as the marijuana is grown in an enclosure that is screened from public view and access is limited to people over 21.  The law does not “prohibit a landlord from banning possession or use of marijuana in a lease agreement,” but if the lease agreement is silent on the issue, marijuana use, cultivation and possession within the parameters of the new law are presumed to be allowed.  

Employers and landlords must also be mindful of Vermont’s medical marijuana laws to avoid claims of discrimination against medical marijuana users on the basis of their disability.

And, it is important to remember that none of this has any impact on federal law.  The federal Controlled Substance Act defines marijuana as a Schedule I controlled substance, and makes it a crime to “knowingly open, lease, rent, use or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance.”  So, for example, landlords who permit the use, cultivation or possession of marijuana may be at risk for federal asset forfeiture or criminal penalties.  The continued criminalization of marijuana at the federal level is a factor weighing heavily in favor of employers, schools, municipalities and landlords adopting written policies, ordinances and lease provisions that prohibit the use and possession of marijuana, despite the decriminalization at the state level.

* This column is for educational and informational purposes only.  It is not intended to provide legal advice, and should not be relied on in lieu of consultation with an attorney. 

Oliver Abbott