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1S.90
2 Introduced by Senator Vyhovsky
3 Referred to Committee on
4 Date:
5 Subject: Labor; employment practices; criminal history checks; credit checks;
6drug testing
7 Statement of purpose of bill as introduced: This bill proposes to prohibit
8 employers from conducting criminal history checks, credit checks, and drug
9 testing in relation to employees and prospective employees unless there is a
10 direct relationship between the information sought and the employee or
11 prospective employee’s job.
12    An act relating to employee privacy protections
13 It is hereby enacted by the General Assembly of the State of Vermont:
14 Sec. 1. 21 V.S.A. § 495i is amended to read:
15 § 495i. EMPLOYMENT BASED ON CREDIT INFORMATION;
16PROHIBITIONS
17***
18    (b) An employer shall not:
19(1) fail or refuse to hire or recruit, discharge, or otherwise discriminate
20 against an individual with respect to employment; compensation; or a term,
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1 condition, or privilege of employment because of the individual’s credit report
2 or credit history; or
3(2) inquire about an applicant’s or employee’s credit report or credit
4 history.
5    (c)(1) An employer is exempt from the provisions of subsection (b) of this
6 section if one or more of the following conditions are met:
7(A) The information is required by State or federal law or regulation.
8(B) The position of employment involves access to confidential
9 financial information.
10(C) The employer is a financial institution as defined in 8 V.S.A.
11 § 11101(32) or a credit union as defined in 8 V.S.A. § 30101(5) and the
12 employer can demonstrate that the information has a direct relationship to the
13 job duties of the specific position of employment.
14(D) The position of employment is that of a law enforcement officer
15 as defined in 20 V.S.A. § 2351a, emergency medical personnel as defined in
16 24 V.S.A. § 2651(6), or a firefighter as defined in 20 V.S.A. § 3151(3).
17(E) The position of employment requires a financial fiduciary
18 responsibility to the employer or a client of the employer, including the
19 authority to issue payments, collect debts, transfer money, or enter into
20 contracts.
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1(F) The employer can demonstrate that the information is a valid and
2 reliable predictor of employee performance in the specific position of
3 employment and has a direct relationship to the job duties of the specific
4 position of employment.
5(G) The position of employment involves access to an employer’s
6 payroll information and the employer can demonstrate that the information has
7 a direct relationship to the job duties of the specific position of employment.
8(2) An employer that is exempt from the provisions of subsection (b) of
9 this section may not use an employee’s or applicant’s credit report or history as
10 the sole factor in decisions regarding employment; compensation; or a term,
11 condition, or privilege of employment.
12***
13    (e) An employer shall not discharge or in any other manner discriminate
14 against an employee or applicant who has filed a complaint of unlawful
15 employment practices in violation of this section or who has cooperated with
16 the Attorney General or a State’s Attorney in an investigation of such practices
17 or who is about to lodge a complaint or cooperate in an investigation or
18 because the employer believes that the employee or applicant may lodge a
19 complaint or cooperate in an investigation The provisions against retaliation in
20 subdivision 495(a)(8) of this subchapter shall apply to this section.
21***
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1 Sec. 2. 21 V.S.A. § 495j is amended to read:
2 § 495j. CRIMINAL HISTORY RECORDS; EMPLOYMENT
3APPLICATIONS
4    (a) Except as provided in subsection (b) of this section, an employer shall
5 not request criminal history record information on its initial employee
6 application form nor inquire about an applicant’s criminal history during a job
7 interview. An employer may only inquire about a prospective employee’s
8 criminal history record during an interview or convictions or recent arrests that
9 have not yet been judicially adjudicated under this subsection once the
10 prospective employee has been deemed otherwise qualified for the position
11 receives a conditional offer of employment and the inquiry has a direct
12 relationship to the job duties of the specific position. If the information
13 provided has a direct relationship to the job duties of the specific position, the
14 employer may withdraw the conditional offer of employment. In considering
15 whether the provided information has a direct relationship to the job duties of
16 the specific position, the employer shall consider:
17(1) the job duties of the specific position;
18(2) the nature and gravity of the offense;
19(3) the passage of time since the offense occurred or the prospective
20 employee completed a prison sentence;
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1(4) the age of the prospective employee at the time the offense occurred;
2 and
3(5) the legitimate interest of the employer in protecting the property and
4 safety and welfare of specific individuals or the general public.
5    (b)(1) An employer may inquire about criminal convictions on an initial
6 employee application form if the following conditions are met:
7(A)(i) the prospective employee is applying for a position for which
8 any federal or State law or regulation creates a mandatory or presumptive
9 disqualification based on a conviction for one or more types of criminal
10 offenses; or
11(ii) the employer or an affiliate of the employer is subject to an
12 obligation imposed by any federal or State law or regulation not to employ an
13 individual, in either one or more positions, who has been convicted of one or
14 more types of criminal offenses; and
15(B) the questions on the application form are limited to the types of
16 criminal offenses creating the disqualification or obligation.
17***
18    (c) If an employer inquires about a prospective employee’s criminal history
19 record information, the prospective employee, if still eligible for the position
20 under applicable federal or State law, must be afforded an opportunity to
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1 explain the information and the circumstances regarding any convictions,
2 including postconviction rehabilitation.
3    (d) An employer who violates the provisions of this section shall be
4 assessed a civil penalty of up to $100.00 $1,000.00 for each violation.
5    (e) As used in this section:
6(1) “Criminal history record” has the same meaning as set forth in 20
7 V.S.A. § 2056a. [Repealed.]
8(2) “Employee” has the same meaning as set forth in section 495d of
9 this chapter.
10(3) “Employer” has the same meaning as set forth in section 495d of this
11 chapter.
12 Sec. 3. 21 V.S.A. § 512 is amended to read:
13 § 512. DRUG TESTING OF APPLICANTS; PROHIBITIONS;
14EXCEPTIONS
15***
16    (b) Exception. An employer may require an applicant for employment to
17 submit to a drug test only if all of the following conditions are met:
18(1) Conditional offer of employment. The applicant has been given an
19 offer of employment conditioned on the applicant receiving a negative test
20 result.
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1(2) Notice. The applicant received written notice of the drug testing
2 procedure and a list of the drugs to be tested. The notice shall also state that a
3 positive test for therapeutic levels of medically prescribed drugs tested,
4 including cannabis for symptom relief, will not be reported. The notice
5 required under this subdivision may shall not be waived by the applicant.
6(3) Administration. The drug test is administered in accordance with
7 section 514 of this title.
8(4) Relationship to job duties. Information relating to the applicant’s
9 possible use of drugs has a direct relationship to the applicant’s ability to
10 perform the job duties of the specific position that has been offered.
11 Sec. 4. 21 V.S.A. § 513 is amended to read:
12 § 513. DRUG TESTING OF EMPLOYEES; PROHIBITIONS;
13EXCEPTIONS
14***
15    (c) Exception. Notwithstanding the prohibition in subsection (a) of this
16 section, an employer may require an individual employee to submit to a drug
17 test if all the following conditions are met:
18(1) Probable cause. The employer or an agent of the employer has
19 probable cause to believe the employee is using or is under the influence of a
20 drug on the job.
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1(2) Employee assistance program. The employer has available for the
2 employee tested a bona fide rehabilitation program for alcohol or drug abuse
3 and such program is provided by the employer or is available to the extent
4 provided by a policy of health insurance or under contract by a nonprofit
5 hospital service corporation.
6(3) Employee may not be terminated. The employee may shall not be
7 terminated if the test result is positive and the employee agrees to participate in
8 and then successfully completes the employee assistance program; however,
9 the employee may be suspended only for the period of time necessary to
10 complete the program, but in no event longer than three months. The
11 employee may be terminated if, after completion of an employee assistance
12 program, the employer subsequently administers a drug test in compliance with
13 subdivisions (1) and, (4), and (5) of this subsection and the test result is
14 positive.
15(4) Administration of test. The drug test is administered in accordance
16 with section 514 of this title.
17(5) Relationship to job duties. Information relating to whether the
18 employee is using or is under the influence of a drug on the job has a direct
19 relationship to the employee’s ability to perform the employee’s job duties.
20 Sec. 5. EFFECTIVE DATE
21    This act shall take effect on July 1, 2025.
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