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Quick and Easy Guide to Labor & Employment Law: Vermont

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in Vermont.

At-Will Employment

Vermont is an at-will employment state, and an employee may be discharged at any time with or without cause unless there is a clear and compelling public policy against the reason for the discharge or if the relationship has been modified, such as via an express or implied contract (including employer policies). Boynton v. ClearChoiceMD, MSO, LLC, 2019 VT 49, ¶ 6, 210 Vt. 454, 458, 216 A.3d 1243, 1246 (VT Sup. Ct. 2019). An employee hired for an indefinite period is presumed to be at-will. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 80, 807 A.2d 390, 395 (2VT Sup. Ct. 2002).

Right-to-Work Laws

Vermont has not enacted "right-to-work" legislation. Therefore, union membership may be a condition of employment. 

Immigration Verification

Vermont places no additional employment verification procedures on employers beyond Federal I-9 compliance. There is no requirement to use E-Verify under Vermont state laws.

Drug Testing

Vermont's Drug Testing Act limits drug testing of applicants and employees. 21 V.S.A. § 511 et seq.

Testing is allowed if (1) the applicant is given offer of employment conditioned on negative test result; (2) the applicant is given a written notice listing drugs to be tested, testing procedures and stating that therapeutic levels prescription drugs are not reported; and (3) drug testing is administered as required by statute.

To test, the employer must comply as follows:

  1. The employer must establish a written policy;
  2. The employer cannot request or require a blood sample;
  3. The employer must use a lab designated by the Department of Health;
  4. The employer must establish a chain of custody procedure;
  5. Where urinalysis is used, the employer must require confirmation tests for positive results and offer tested employee the opportunity to have a blood sample drawn; and
  6. The employer must ensure that a positive sample is preserved for accurate retesting for no less than 90 days after the employee receives the result.

Random employee testing is generally prohibited with certain exceptions. These include probable cause believing an employee is using or under the influence of a drug on the job or the employer offers a bona fide rehab program (and the employee is not terminated while in the program or three months after completion). Testing processes must comply with state law, results kept confidential and the employee shall be given the opportunity to retest at an independent laboratory at the expense of the person tested and shall consider the results of the retest.

Jury Duty and Court Leave

It is unlawful for an employer to discharge an employee by reason of his or her service as a juror or appearance as a witness in a court or other tribunal pursuant to a summons, or to penalize the employee or deprive him or her of any right, privilege or benefit on a basis that discriminates between such employee and other employees not serving as jurors or appearing as a witness.

Employees must be considered in the service of their employer when serving as jurors or appearing as a witness for purposes of determining seniority, fringe benefits, credit toward vacations and other rights, privilege, and benefits of employment. 21 V.S.A. § 499

Vermont also requires leave for crime victims to attend depositions or court proceedings for themselves or family members. Likewise, leave applies to employees who must comply with subpoenas related to same. Vt. Stat. Ann. 21, § 472c; Vt. Stat. Ann. 13, § 5313

Voting Leave

Vermont has not enacted voting leave requirements for employers.

Earned Sick Leave

Vermont enacted an Earned Sick Time law, 21 V.S.A § 481. The state requires employers to provide paid leave under a system in which employees earn and use the leave for enumerated reasons. In particular, employers must provide employees, who are otherwise eligible, with earned sick time to care for their or their family members' illness or injury; to medical care; to attend family member long-term care appointments, attend/obtain social, legal services or counseling for themselves or their family members when they or their family members are victims of domestic violence, sexual assault or stalking; or to care for family members when their school or business closes for public health or safety reasons.

New employers are not subject to this law until a year after hiring the first employee, and new employees may not be eligible for a year depending on the employer’s discretion.

To be eligible, an employee must work an average or 18 hours per week in a year. A range of employees are not covered, including federal and some state employees, temporary employees, per diem workers, certain executive level employees and minors, among others.

Employees accrue at least one hour of sick time per each 52 hours worked. Accrual and use can be limited to 40 hours in a 12-month period. The amount of leave used in a single workday must be used in the smallest time increment used for payroll time accounting or under the paid time-off policy, but such time can be no less than an hour. Leave can be carried over year to year unless the employer chooses to pay for unused leave annually. 

Sick leave is compensated at a rate equal to the greater of the employee's normal rate or Vermont's minimum wage.

Vermont provides alternatives for compliance, including certain reliance on paid time off policies that provide leave accrual and use at a rate that comports with the sick leave requirements. The scope and breadth of the alternatives and general sick-time policy requirements for employers necessitates a close review for each employer to ensure compliance.

Retaliation for use of sick leave is prohibited by the minimum wage statute. 21 V.S.A. § 397.

Parental/Family Leave (Including Pregnancy and Childbirth)

Vermont employers with the requisite number of "employees," i.e., persons who have been continuously employed by the same employer for a period of one year for an average of at least 30 hours per week, are required to provide certain amounts of family and parental leave.

Family leave encompasses leave for the serious illness (an illness posing imminent danger of death, requiring hospitalization or in-home care under a physician's direction) of the employee, his or her child (including a stepchild, ward or foster children), spouse or parent-in-law. This leave is available if the employer has 15 or more employees as defined above. 21 V.S.A. § 471

Parental leave encompasses leave for the birth of the employee's child or placement of a child age 16 or under for the purpose of adoption. This leave is available if the employer has ten or more employees as defined above. 21 V.S.A. § 471

Eligible employees may take up to 12 weeks of family or parental leave in a 12-month period.  Employees are entitled to benefits continuation during such leave, but can be required to continue contributing to the cost at the existing contribution rate.

These types of leave are unpaid, but employees may use up to six weeks of accrued paid leave. Employees must provide reasonable notice of intent to take leave and the expected period for the leave. Physician verification may be required for serious illnesses.

Employees are entitled to be restored to their position or a comparable position at the same pay, benefits and seniority, but restatement entitlement is not applicable if the employer can demonstrate by clear and convincing evidence that the job would have been terminated or employee laid off for grounds unrelated to the leave, or their services were so unique as to require replacement of the employee to avoid substantial and grievous economic harm, so long as notice of intent to do so is given. 

Employers may provide broader leave benefits than required by the state. 21 V.S.A. § 472

Note: Vermont's law covers more employees than the Family and Medical Leave Act (FMLA), which requires at least 50 employees within 75 miles of the worksite. Vermont bases eligibility on hours per week versus the 1,250 hours in the prior 12 months that's required by the FMLA. Vermont does not cover placement of foster children, however it is covered by the FMLA. The FMLA permits employers to require a medical certification and provides a second-opinion process, unlike Vermont.

Short-term Family Leave

Additionally, eligible employees are entitled to take "short-term family leave" to:

  • Attend preschool/school activities, such as a parent-teacher conference, that directly relate to the academic educational advancement;
  • Attend routine medical or dental appointments;
  • Accompany a family member to routine medical or dental appointments; or
  • Accompany a parent, spouse, or parent-in-law to appointments for professional services related to care and well-being.

This leave is limited to four hours in a 30-day period and a total of 24 hours in a 12-month period.  Leave is unpaid, but employees may use accrued paid leave. Notice of the need for leave should be provided as early as possible, but generally no later than seven days before absent circumstances that could have an adverse impact on the family member. 21 V.S.A. § 472a

Other Leave

Vermont provides for several other types of leave, including:

  • Crime-victim leave for attendance of court proceedings and depositions for persons continuously employed by the same employer for at least 20 hours per week over six months. 21 V.S.A. § 472c
  • Subpoena compliance leave. 13 V.S.A., § 5313
  • Military leave for qualified members of the U.S. armed forces' reserve components, the Ready Reserve or any state's National Guard, including the Vermont National Guard. Leave is paid or unpaid at employer discretion and, depending on the order period or call-up time, benefits may continue at employee choice with cost sharing for up to 30 days and thereafter with cost sharing or Vermont's payment of the employer share. Discrimination for leave use is prohibited and violations can subject employers to penalties, including via state legal action or employee suits. 21 V.S.A. § 491 et seq.; 21 V.S.A. § 472c

Smoking/Tobacco Laws

Vermont broadly prohibits lighted tobacco products or use of tobacco substitutes in any form, smoking in places of public access, which includes any public or private place of business, commerce, banking or other service-related activity.

Vermont also explicitly prohibits possession or lighted tobacco products and use of tobacco substitutes in the workplace. 

Vermont prohibits the discharge of or discrimination against an employee in retaliation for assisting in the enforcement of Vermont laws concerning smoking in the workplace. 18 V.S.A. §§ 1421, 1427, 1741, 1742

Break Time to Express Milk

Employers are required provide "reasonable time" to nursing mothers to express breast milk for a nursing child for three years after the child's birth. The employer has the discretion to decide if the time is paid or unpaid (absent a collective bargaining agreement which modifies this). A reasonable accommodation to provide "appropriate private space" is required; the space cannot be a bathroom stall.

Employers may be exempted if providing time or an appropriate private space would "substantially disrupt" operations.

Violations will subject employers to fines or civil action for violations; retaliation and discrimination against employees who exercise rights under this law or attempt to do so is prohibited. 21 V.S.A. § 305

Meal Breaks

Vermont employers must provide employees with reasonable opportunities during work periods to eat and to use toilet facilities to protect the health and hygiene of the employees. 21 V.S.A. § 304

Minimum Wage, Overtime and Wage Recordkeeping

Beginning, January 1, 2022, Vermont's minimum wage will increase from $11.75 per hour to $12.55 per hour, with tipped employee wages increasing from $5.88 per hour to $6.28 per hour as long as the employee's tips bring the total hourly wage up to the state minimum wage. Employers must still comply with federal wage laws and regulations.

Commission employees must make at least the current minimum wage for all hours worked, even if on straight commission, or receive a wage/commission payment.

Certain minimum wage exemptions apply to, among others, students, agriculture workers, taxi drivers, salespersons, domestic service and federal employees.

Generally, if an employee works more than 40 hours in a workweek, he or she must be compensated at a rate of one and one-half times the regular rate of pay at which he or she is employed. There are a range of exemptions, however.

Vermont law does not address on-call or travel time. Various training attendance must be compensated.

See Vermont’s Department of Labor site: labor.vermont.gov/rights-and-wages.

Final Payments

Vermont requires wage payments to discharged employees within 72 hours of discharge. Employers must pay employees who quit on the last regular payday.

There are a range of requirements governing final payments, deductions, notification and bonus pay. 21 V.S.A. §§ 341-342

Unemployment Insurance

Unemployment insurance benefits provide income to individuals who have lost work through no fault of their own. The benefits are intended to partially offset the loss of wages while an unemployed worker searches for suitable work or until an employer can recall the employee to work. Nothing is deducted from the employee's wages to pay for this coverage. Unemployment benefits are administered by the Vermont Department of Labor, and additional information regarding the benefits may be accessed at labor.vermont.gov/unemployment-insurance.

Workers' Compensation

Workers Compensation is available to every employer in Vermont. Employees who suffer injuries (including aggravation of a condition) and/or occupational diseases arising out of and in the course of their employment may be eligible to receive several types of benefits. Vermont Department of Labor and additional information may be accessed labor.vermont.gov/workers’-compensation.

Vermont recognizes a private cause of action for discrimination and retaliation for assertion of a claim.

21 V.S.A. § 601 et seq.

Child Labor

Vermont places restriction on employment of minors ages 14 and 15. These youths generally may not work during school hours, before 7:00 a.m. or after 7:00 p.m. The amount of time a minor may work during a day and week depends on whether it is a school or non-school day. No child may work more than 40 hours in a week. Minors are prohibited from a wide range of hazardous jobs. At age 16, a minor may be employed for most work unless the work is declared hazardous by the U.S. Department of Labor. 21 V.S.A. 430 et seq.

Gun Laws

Vermont has not enacted legislation to protect gun ownership and possession at the workplace. Employers are therefore free to prohibit gun possession at work.

Additional Laws and Regulations

Employee v. Independent Contractor

To determine whether a worker is an employee or an independent contractor, for purposes of determining whether alleged employer may be liable for the worker's torts, Vermont courts rely primarily on the "right to control" test. Under this test, a worker is an employee if the party for whom work is being done can prescribe the result and direct the means and methods by which shall be performed. Hathaway v. Tucker, 2010 VT 114, 189 Vt. 126, 14 A.3d 968 (2010)

Polygraph Testing

Except as set forth below, Vermont prohibits employers from conditioning employment, promotion or change in status, require an employee or applicant to submit to a polygraph, administer, cause to be administer, or threaten or attempt to administers a polygraph, or request or required a waiver of these prohibitions. Likewise, an employer shall not refuse to hire, promote or change the status of an applicant because he or she refuses or declines an examination. 21 V.S.A. § 494

The following employers may require polygraph examinations:

  • The Department of Public Safety and the Department of Motor Vehicles for applicants for law enforcement positions;
  • The Department of Fish and Wildlife for applicants for law enforcement positions;
  • The Department of Liquor and Lottery and the Board of Liquor and Lottery, for applicants for investigator positions; municipal police departments and county sheriffs, as to sworn police officers and deputy sheriffs;
  • Any employer whose primary business is the wholesale or retail sale of precious metals or gems and jewelry or items made from precious metals or gems;
  • Any employer whose business includes the manufacture or the wholesale or retail sale of regulated drugs. Only employees who come in contact with such regulated drugs may be required to take a polygraph examination; or
  • Any employer authorized or required under federal law or regulations to administer polygraph examination.

21 V.S.A. § 494b

Civil Rights – Includes Gender, Disability and Equal Pay

Vermont's Fair Employment Practices Act (FEPA) makes it unlawful to discriminate based upon color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, age and existence of disability in a qualified individual in employment via an employer, employment agency or labor organization. FEPA prohibits discrimination in pay based on sex for equal work that requires equal skill, effort, and responsibility and is performed under similar working conditions. 21 V.S.A. § 495 et seq.

Genetic Information

Vermont provides that no person shall do certain acts as a condition of employment, of membership in a labor organization, or of professional licensure, certification or registration:

  1. Use the fact that genetic counseling or testing services have been requested or that genetic testing has been performed;
  2. Use genetic testing results or genetic information from a person or a member of a person's family;
  3. 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
  4. Require genetic testing.

18 V.S.A. § 9333

Marijuana

Vermont allows adult (a person age 21 years or older) and medical marijuana/cannabis use. Retail sales may open in 2022. 

Employers may still bar marijuana from the workplace and working under the influence regardless of whether the person has a disability. The drug testing requirements section above is also is applicable to marijuana or cannabis testing.

However, caution is warranted since workers with a medical marijuana card and who are qualified as an individual with a disability are protected under Vermont's Fair Employment Practices Act. Employers cannot discriminate against such employee who use cannabis outside of work for treatment purposes.

See Vermont's Department of Agriculture guide: ago.vermont.gov/wp-content/uploads/2018/06/Employer-MJ-Guidance-TOC.pdf

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Guide last updated July 2021.

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