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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. 8 U.S.C. 1324a. 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 a negative test result; (2) the applicant is given a written notice listing drugs to be tested and testing procedures, and stating that therapeutic levels of prescription drugs are not reported; and (3) drug testing is administered as required by statute. 21 V.S.A § 512.

To test, the employer must comply as follows:

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

21 V.S.A § 514.

Random employee testing is generally prohibited, with certain exceptions, including 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 for three months after completion). 21 V.S.A § 513. Testing processes must comply with state law, results must be kept confidential, and the employee shall be given the opportunity to retest at an independent laboratory at the expense of the employee tested. 21 V.S.A § 515.

Jury Duty and Court Leave

It is unlawful for an employer to discharge an employee by reason of their 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 them of any right, privilege, or benefit on a basis that discriminates between such employee and other employees not serving as jurors or appearing as witnesses.

Employees must be considered in the service of their employer when serving as jurors or appearing as witnesses 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. 21 V.S.A. § 472c; 13 V.S.A. § 5313.

Voting Leave

Vermont has not enacted voting leave requirements for employers. However, employees have the right to take unpaid leave from employment to attend their annual town meetings, provided they give the employer a least seven days' notice. 21 V.S.A § 472b.

Earned Sick Leave

Vermont enacted an Earned Sick Time law, 21 V.S.A §§ 481-487. 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 own or their family members' illness or injury; receive medical care; 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 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 not covered includes 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 in the smallest time increment 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 necessitate 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" – people 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. 21 V.S.A. § 471.

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, their child (including a stepchild, ward, or foster child), 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 10 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. 21 V.S.A. § 472.

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. 21 V.S.A. § 472.

Employees are entitled to be restored to their positions or comparable positions 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, as long as notice of intent to do so is given. 21 V.S.A. § 472.

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

Employers must post and maintain, in a conspicuous place, the printed notices required for the leaves under this provision.

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 is required by the FMLA. 21 V.S.A. § 471. Vermont does not cover placement of foster children; however, that 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

Eligible employees are also entitled to take "short-term family leave" to:

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

"Child," as referenced above, means the employee's child, stepchild, foster child, or ward who lives with the employee. "Family member" means parent, spouse, or parent-in-law.

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, unless circumstances 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 at court proceedings and depositions for people continuously employed by the same employer for at least 20 hours per week over six months. 21 V.S.A. § 472c. This leave is unpaid, but employees may use accrued sick leave, vacation leave, or any other accrued paid leave. Eligible employees are entitled to leave to attend: a criminal proceeding, when the employee is an alleged victim and the employee has a right or obligation to appear at the proceeding; a relief from abuse proceeding; a hearing concerning an order against stalking or sexual assault; or a relief from an abuse, neglect, or exploitation hearing. Employers must post a notice related to this leave.
  • Subpoena compliance leave: An employer may not discharge or discipline an employee who is a victim of a listed crime or a victim's family member or representative for honoring a subpoena to testify. 13 V.S.A., § 5313.
  • Town meeting leave: Employees have the right to take unpaid leave for the purpose of attending their annual town meetings, provided the employee notifies the employer at least seven days prior to the date of the town meeting. 21 V.S.A. § 472b(a).
  • Military leave: Qualified members of the U.S. armed forces reserve components, Ready Reserve, or any state's National Guard, including the Vermont National Guard, may receive paid or unpaid leave at the employer's discretion. Depending on the order period or call-up time, benefits may continue at the employee's 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 and smoking in places of public access, which include any public or private place of business, commerce, banking, or other service-related activity. Vermont also explicitly prohibits possession of 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 employees. 21 V.S.A. § 304

Minimum Wage, Overtime, and Wage Recordkeeping

Beginning, January 1, 2022, Vermont's minimum wage is $12.55 per hour, with tipped employee wages paid $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. 21 V.S.A. § 384(a)

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, they must be compensated at a rate of one and one-half times the regular rate of pay at which they are employed. There is a range of exemptions, however. 21 V.S.A. § 384(b).

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.

A range of requirements governs 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. The 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

Children under 14 are generally prohibited from performing any non-agricultural work. Children between 14 and 16 are prohibited from working in an extensive list of occupations, and their hours are restricted. These children may not be employed:

  • During school hours (certain exceptions apply)
  • Before 7 a.m. or after 7 p.m. (9 p.m. between June 1 and Labor Day)
  • More than three hours per day on school days
  • More than eight hours per day on non-school days
  • More than 18 hours per week in school weeks
  • More than 40 hours per week in non-school weeks; and
  • More than six days in a week.

Children between 16 and 18 are prohibited from working in certain hazardous occupations. These children may not be employed in a manufacturing or mechanical establishment more than nine hours on any one day or more than 50 hours in any one week.

See 21 V.S.A. 430 et seq.

Gun Laws

Vermont has not enacted legislation to protect gun ownership and possession in 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 an 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 it shall be performed. Hathaway v. Tucker, 2010 VT 114, 189 Vt. 126, 137, 14 A.3d 968, 976 (2010).

Polygraph Testing

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

The following employers may require polygraph examinations:

  • Department of Public Safety and the Department of Motor Vehicles, for applicants for law enforcement positions
  • Department of Fish and Wildlife, for applicants for law enforcement positions
  • Department of Liquor and Lottery and Board of Liquor and Lottery, for applicants for investigator positions; municipal police departments and county sheriffs, as to sworn police officers and deputy sheriffs
  • Whose primary business is the wholesale or retail sale of precious metals or gems and jewelry or items made from precious metals or gems
  • Whose business includes the manufacture or 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
  • 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 on race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, age, physical or mental condition, or a positive test result from an HIV-related blood test. FEPA prohibits discriminating against applicants or employees based on a protected characteristic; retaliating against an employee because the employee filed a complaint of discrimination or has cooperated with the attorney general or state attorney in an investigation of same or the employer believes the employee may lodge such a complaint; requiring an applicant or employee to submit to an HIV-related blood test as a condition of employment; and sexual harassment.

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. It likewise prohibits requiring an employee to refrain from disclosing the amounts of their wages. 21 V.S.A. § 495 et seq.

Sexual Harassment

Every employer must adopt a policy against sexual harassment that includes: (A) a statement that sexual harassment in the workplace is unlawful; (B) a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of sexual harassment; (C) a description and examples of sexual harassment; (D) a statement of the range of consequences for employees who commit sexual harassment; (E) if the employer has more than five employees, a description of the process for filing internal complaints about sexual harassment and the names, addresses, and telephone numbers of the person or people to whom complaints should be made; and (F) the complaint process of the appropriate state and federal employment discrimination enforcement agencies, and directions for how to contact such a complaint. Employers must post, in a prominent and accessible location, a poster providing, at a minimum, the elements of the sexual harassment policy outlined above. All employees must be provided a copy of the policy, including when the policy is changed.

Employers may not require employees or prospective employees to sign an agreement or waiver as a condition of employment that: (A) prohibits, prevents, or otherwise restricts the employee or prospective employee from opposing, disclosing, reporting, or participating in an investigation of sexual harassment; or (B) except as otherwise permitted by state or federal law, purports to waive a substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment. Certain limitations apply to any settlement of a claim of sexual harassment. 21 V.S.A. § 495h.

Genetic Information

Vermont provides that no person shall do certain acts as a condition of employment; membership in a labor organization; or 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 from the results of a genetic test.
  4. Require genetic testing.

18 V.S.A. § 9333

Marijuana

Vermont allows adult (a person aged 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 applicable to marijuana or cannabis testing.

However, caution is warranted since workers with a medical marijuana card and who are qualified as individuals with a disability are protected under Vermont's Fair Employment Practices Act. Employers cannot discriminate against such employees 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

Noncompete Agreements

Vermont does not restrict the use of noncompete agreements, other than for individuals working in barbering or cosmetology. 26 V.S.A. § 281.

Ban-the-Box

Employers cannot request criminal history record information, including arrests, convictions, or sentences, on an initial employment application form, unless an exception applies. Employers may inquire about a prospective employee's criminal history record during an interview or once the prospective employee has been deemed otherwise qualified for the position. Employers may likewise inquire about criminal convictions on an initial employment application if either the applicant is seeking a position for which state or federal law creates a disqualification based on a conviction, or the employer is subject to any federal or state law that prohibits it from employing an individual who has been convicted of one or more criminal offenses.

Mini-WARN

  • Vermont Notice of Potential Layoffs Act (NPLA)
    • A covered employer means an employer that employs 50 or more full-time employees; 50 or more part-time employees who work at least 1,040 hours per employee per year; or a combination of 50 or more full-time employees and part-time employees as defined above.
    • Covered employers must provide written notice to:
      • the Vermont Secretary of Commerce and Community Development and commissioner of Labor at the VDOL 45 days before a closing or mass layoff
      • the local chief elected official or administrative officer of the municipality where the business closing/mass layoff is to occur, affected employees, and bargaining agent, if any, 30 days before a closing or mass layoff
    • 21 V.S.A. §413.
  • Vermont Mass Separation Notification Administration Rule
    • Vermont employers must notify the VDOL if there is a "mass separation," which is a separation of either:
      • 20% of the total number of workers in a single establishment
      • 50% of the total number of workers employed in any division or department; or, notwithstanding the foregoing,
      • 10 or more workers employed in a single establishment.
    • Such notice must be filed not later than 24 hours after separation.
    • 24-001 Code Vt. R. 24-005-001-X.
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Guide last updated October 2022.

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