§ 1. Department created; Commissioner, appointment.

1. The Department of Labor is hereby created to administer the laws relating to labor in chapter 1, subchapters 4 and 5 of chapter 3, and chapters 5, 9, and 12 through 17 of this title and other laws assigned to the Department for administration. There shall be within the Department the Apprenticeship Council and other boards, councils, and committees specially assigned to the Department.
2. Biennially, with the advice and consent of the Senate, the Governor shall appoint a Commissioner of Labor.

   Amended 1959, No. 329 (Adj. Sess.), § 30, eff. March 1, 1961; 1967, No. 71 , § 1; 2005, No. 103 (Adj. Sess.), § 1, eff. April 5, 2006.

§ 1a. Reports.

The Commissioner of Labor shall prepare and submit, consistent with 2 V.S.A. § 20(a) , a report on attorney's fees, pursuant to subsection 678(c) of this title.

Added 2003, No. 122 (Adj. Sess.), § 294n; amended 2003, No. 122 (Adj. Sess.), § 294x, eff. April 1, 2005; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

§ 2. Cooperation with United States.

With the written approval of the Governor, the Commissioner of Labor is authorized and empowered to cooperate and contract in the name and on behalf of the State with the U.S. Department of Labor in the work of inspection and investigation under the federal Fair Labor Standards Act and to accept grants and assistance from the U.S. Department of Labor for such inspection and investigation.

Amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

§ 3. Cooperation with Attorney General and commissioners of financial regulations and of taxes; memoranda of understanding.

1. The Attorney General and the Commissioner of Labor shall enter into a memorandum of understanding to establish a process for the referral of complaints received by the Commissioner of Labor to the Attorney General, the sharing of information, and the coordination of investigatory and enforcement resources in relation to the provisions of sections 346, 387, 712, and 1379 of this title. Notwithstanding any provision of 9 V.S.A. § 2460(a) to the contrary, the memorandum shall, at a minimum, provide for:
   1. notice from the Attorney General to the Commissioner of Labor regarding complaints received by the Attorney General that relate to a possible violation of the laws under the jurisdiction of the Commissioner;
   2. a procedure for the Commissioner of Labor to refer a complaint to the Attorney General if the employer complained of appears to be engaging in willful, substantial, or systemic violations of the provisions of chapter 5, subchapter 2 or 3 of this title, or chapter 9 or 17 of this title through the misclassification of employees;
   3. a requirement that the Commissioner of Labor shall, upon receiving a complaint against an employer that has been determined to have engaged in employee misclassification on two separate occasions during the past five years or is alleged to have misclassified five or more employees, refer the complaint to the Attorney General and coordinate with the Attorney General to investigate the complaint and, depending on the outcome of the investigation, seek any appropriate penalties pursuant to the provisions of this title and 9 V.S.A. §§ 2458-2461 ;
   4. the exchange of information and coordination of investigatory and enforcement resources between the Commissioner of Labor and the Attorney General; and
   5. compliance with the requirements of 20 C.F.R. Part 603 in relation to any information disclosed pursuant to section 1314 of this title.
2. The Commissioner of Labor shall enter into separate memoranda of understanding with the Commissioner of Financial Regulation and the Commissioner of Taxes to establish a process for sharing information related to investigations of the misclassification and miscoding of workers pursuant to the laws under their jurisdiction. The memoranda shall provide, at a minimum, that any disclosure of information pursuant to section 1314 of this title shall comply with the requirements of 20 C.F.R. Part 603.
3. The Attorney General shall enter into separate memoranda of understanding with the Commissioner of Financial Regulation and the Commissioner of Taxes to establish a process for sharing information related to an investigation by the Attorney General pursuant to sections 346, 387, 712, and 1379 of this title. Notwithstanding any provision of 9 V.S.A. § 2460(a) to the contrary, each memorandum shall, at a minimum, provide for the disclosure by the Attorney General of any instance in which he or she has determined that an employer has, through the misclassification of an employee, violated the provisions of chapter 5, subchapter 2 or 3 of this title or chapter 9 or 17 of this title and the basis for that determination.
4. Nothing in this section shall be construed to prevent the Commissioner of Labor from investigating complaints of violations of the laws under his or her jurisdiction or enforcing those laws pursuant to the applicable provisions of this title.
5. Information shared pursuant to this section shall be exempt from public inspection and copying under the Public Records Act and shall be kept confidential. Notwithstanding 1 V.S.A. § 317(e) , the Public Records Act exemption created in this section shall continue in effect and shall not be repealed through the operation of 1 V.S.A. § 317(e) .

   Added 2019, No. 85 (Adj. Sess.), § 8, eff. Feb. 20, 2020.

§ 4. Duties as to employment and payment of wages.

The Commissioner or the Commissioner's agent shall make examinations and investigations to see that the laws pertaining to the employment of minors and the weekly payment of wages are being complied with and for such purposes may enter any place where persons are employed.

Amended 2017, No. 74 , § 30.

§ 5. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

§ 6. Repealed. 2017, No. 17, § 1.

§§ 101-109. Repealed. 1967, No. 291 (Adj. Sess.), § 1, eff. Jan. 1, 1969.

§§ 111-124. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

§§ 141-152. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

§ 141. Purpose; definitions.

1. The purpose of this subchapter is to assure that elevators and other automated conveyances are correctly and safely installed and operated within the State by authorizing and enforcing rules for the design, installation, operation, and maintenance of automated people conveyances, and by licensing mechanics and inspectors who work on these conveyances.
2. For the purposes of this subchapter:
   1. "Board" means the Elevator Safety Review Board.
   2. "Certificate of operation" means a document issued by the Department indicating that a conveyance has passed the required safety inspection, and the conveyance may be operated for a year from the date the certificate is issued.
   3. "Commissioner" means the Commissioner of Public Safety or the Commissioner's designee.
   4. "Conditional certificate of operation" means a document issued by the Department that permits a conveyance that is not in compliance with rules adopted under this subchapter, but, after inspection, has been deemed safe for temporary operation to operate for up to 30 days or until the conveyance is in compliance, whichever occurs earlier.
   5. "Conveyance" means an electrically-driven mechanical device that moves people or materials vertically, and includes elevators, escalators, platform lifts and stairway chairlifts.
   6. "Department" means the Department of Public Safety.
   7. "Elevator inspector" means an individual who is licensed by the Commissioner to perform safety inspections of newly installed and existing conveyances.
   8. "Elevator mechanic" means an individual who is licensed by the Commissioner to erect, construct, install, alter, service, repair, and maintain conveyances.
   9. "Public building" has the same meaning as that term is defined in 20 V.S.A. § 2730 .
   10. "Lift mechanic" means an individual who is licensed by the Commissioner to erect, construct, install, alter, service, repair, and maintain platform lifts and stairway chairlifts.

       Added 2001, No. 60 , § 1, eff. June 16, 2001; amended 2001, No. 151 (Adj. Sess.), § 44b, eff. June 27, 2002; 2005, No. 8 , § 6, eff. April 25, 2005.

§ 142. Conveyances regulated.

1. This subchapter regulates the design, construction, operation, inspection, testing, maintenance, alteration, and repair of the following conveyances and associated parts that are installed in or on a public building:
   1. Hoisting and lowering mechanisms equipped with a car or platform, that moves between two or more landings, including:
      1. Elevators.
      2. Platform lifts and stairway chairlifts.
      3. Power-driven stairways.
      4. Escalators.
   2. Hoisting and lowering mechanisms equipped with a car that serves two or more landings and is designed to carry material, not people, but not including dumbwaiters.
2. This subchapter does not cover the conveyances that are regulated by the Vermont Tramway Board or by the rules of the Vermont Occupational and Safety Administration, or by the Federal Mine Safety and Health Act, 30 U.S.C.A. § 801 et seq.

   Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 143. License required.

No person shall erect, construct, wire, alter, replace, or maintain any conveyance located in any public building in this State unless the person is licensed as an elevator mechanic, except that person who is licensed as a lift mechanic may erect, construct, wire, alter, replace, or maintain any conveyance located in any public building. An apprentice or helper may perform any of the activities described in this section only when a mechanic licensed under this chapter is physically present and is immediately available to direct and supervise that apprentice or helper.

Added 2001, No. 60 , § 1, eff. July 1, 2002; amended 2001, No. 151 (Adj. Sess.), § 44d, eff. June 27, 2002; 2005, No. 8 , § 6a, eff. April 25, 2005.

§ 144. Elevator Safety Review Board; members; duties.

1. The Elevator Safety Review Board is established within the Department, and shall consist of seven members, one of whom shall be the Commissioner or designee, one of whom shall be the Commissioner of Labor or designee, and five members to be appointed by the Governor as follows: one representative from a major elevator manufacturing company; one representative from an elevator servicing company; an owner or manager of a multistoried building, in which a conveyance is installed; an elevator inspector; and an individual who actually installs, maintains, and repairs conveyances. The members appointed by the Governor shall be appointed for staggered terms of three years, and shall be entitled to compensation and expenses as provided in 32 V.S.A. § 1010 .
2. The Board shall:
   1. Adopt rules regarding the following:
      1. Safety standards for the operation, maintenance, servicing, construction, alteration, installation, and inspection of conveyances covered by this subchapter. At a minimum, the Board shall adopt rules that include the Safety Code for Elevators and Escalators, ASME A17.1; the Safety Code for Existing Elevators and Escalators, ASME A17.3; the Safety Standards for Platform Lifts and Stairway Chairlifts, ASME A18.1; and Standard for the Qualification of Elevator Inspectors, ASME QEI-1. The Board shall amend the rules to include any changes or amendments to these standards within six months after the effective date of the standard changes. The Board may adopt rules to modify these standards as the Board deems necessary.
      2. Any other rule necessary to implement this subchapter.
   2. Grant variances, provided the variance provides an equal or greater level of public safety. The decision of the Board in regard to an application for a variance shall be final.
3. The Board may:
   1. adopt rules for temporary elevator mechanic licenses in the event of an emergency; and
   2. contract with a national testing service to develop and administer licensing examinations.

      Added 2001, No. 60 , § 1, eff. June 16, 2001; amended 2007, No. 153 (Adj. Sess.), § 6a.

§ 145. Elevator mechanic license and lift mechanic license.

An individual shall submit to the Commissioner a written application for an elevator mechanic or a lift mechanic license on a form provided by the Board, accompanied by the required fee. A license shall be granted to an applicant who demonstrates to the satisfaction of the Board that the applicant meets the qualifications established by the Board. An individual who holds an elevator mechanic license may work on platform lifts and stairway chairlifts without a lift mechanic license. An individual who holds only a lift mechanic license may not work on elevators without an elevator mechanic license.

Added 2001, No. 60 , § 1, eff. June 16, 2001; amended 2001, No. 151 (Adj. Sess.), § 44c, eff. June 27, 2002.

§ 146. Elevator inspector license.

An individual shall submit to the Commissioner a written application for an elevator inspector license on a form provided by the Board, accompanied by the required fee. A license shall be granted to an applicant who demonstrates to the satisfaction of the Board that the applicant meets the qualifications established by the Board.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 147. Examination not required.

A license for elevator mechanic or inspector shall be issued to an applicant, upon application and payment of the required fee, or to an individual who holds a comparable valid license or certification from a state that has equal or more stringent requirements.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 148. Issuance and renewal of licenses; fees.

1. A license issued by the Board shall be valid for two years. The Board may renew a license, provided the applicant submits a written application for renewal accompanied by the required fee prior to expiration of the license.
2. Applicants for license renewal shall provide evidence, satisfactory to the Board, of completion of eight hours of instruction approved by the Board, designed to ensure the continued qualifications of the applicant.
3. License and renewal fees are as follows:
   1. Elevator mechanic license: $75.00.
   2. Elevator inspector license: $150.00.
   3. Lift mechanic license: $50.00.

      Added 2001, No. 60 , § 1, eff. June 16, 2001; amended 2001, No. 151 (Adj. Sess.), § 44e, eff. June 27, 2002.

§ 149. Civil penalties; suspension; revocation of license.

After notice and hearing, the Board may suspend or revoke a license and assess administrative penalties pursuant to section 156 of this title for any of the following reasons:

1. fraud or deceit in obtaining the license;
2. failure to notify the Department and the owner or lessee of a conveyance of noncompliance of the conveyance with the standards adopted under this subchapter; or
3. violation of any provisions of this subchapter.

   Added 2001, No. 60 , § 1, eff. July 1, 2002.

§ 150. Registration of conveyances.

1. The owner or lessee of a conveyance shall register the conveyance with the Department, pursuant to rules adopted by the Board. The registration shall include the type, rated load and speed, manufacturer, location, purpose, date of installation, and any additional information the Board may require.
2. The Commissioner may, after notice and hearing, assess an administrative penalty of no more than $1,000.00 against a building owner or lessee who fails to register a conveyance as required by this subchapter.

   Added 2001, No. 60 , §§ 1, 3a, eff. date see notes set out below.

§ 151. Permits.

1. No conveyance shall be erected, constructed, installed, or altered in a public building unless a permit has been obtained from the Department before work is commenced. Before a material alteration, as defined by rule, is begun, the conveyance shall conform to rules adopted by the Board regulating the alteration. A copy of the permit shall be kept at the construction site at all times while work is in progress.
2. Each application for a permit shall be accompanied by a fee of $25.00, and copies of specifications and accurately scaled and fully dimensioned plans that clearly indicate location of the elevator in the building; the location of the machinery room and the equipment to be installed, relocated, or altered; all structural supporting members, including foundations; and a specification of all materials to be used and all loads to be supported or conveyed. The plans and specifications shall be sufficiently complete to illustrate all details of construction and design.
3. A permit may be revoked for any of the following reasons:
   1. a false statement or a misrepresentation of a material fact in the application, plans, or specifications on which the permit was based;
   2. failure of the permittee to perform work in accordance with the conditions of the permit, the provisions of the application, plans, or specifications, or with the standards required by this subchapter; or
   3. failure of the permit holder to comply with any order issued pursuant to section 154 of this title.
4. Work shall commence within six months after the date of issuance of a permit, or within a shorter period of time as the Commissioner may specify in the permit.
5. A permit shall expire if work is suspended or abandoned for more than 60 days after work has begun, or a shorter period of time as the Commissioner may specify in the permit. For good cause shown, the Commissioner may extend this period.

   Added 2001, No. 60 , § 1, eff. July 1, 2002.

§ 152. New installations; annual inspections and registrations.

1. A new conveyance shall not be placed in operation until it has been inspected by an elevator inspector other than the installer, and a certificate of operation has been issued.
2. Every conveyance subject to this subchapter shall be inspected annually by an elevator inspector who may charge a fee for the service as established by the Board by rule. Rules adopted by the Board under this subsection shall take into account the degree of difficulty required by the inspection, the frequency of use of the conveyance, and the mode of operation of the conveyance, such as cable, traction, hydraulic, light use, or platform lift. The inspector shall notify the Department if a conveyance is found to be in violation of this subchapter or any rule adopted under this subchapter.
3. An elevator inspector shall issue a certificate of operation after the inspector has inspected a new or existing conveyance, and has determined that the conveyance is in compliance with this subchapter. A certificate of operation shall be renewed annually. An owner of a conveyance shall ensure that the required inspections and tests are performed at intervals that comply with rules adopted by the Board. Certificates of operation shall be clearly displayed on or in each conveyance.
4. The Department may issue a conditional certificate of operation for a conveyance that is not in complete compliance, provided the conveyance has been inspected and determined to be safe for temporary operation. This conditional certificate of operation shall permit a conveyance to operate for no more than 180 days or until the conveyance is in compliance, whichever occurs first.
5. The inspector shall submit $25.00 of the fee charged for each inspection to the Department for each certificate of operation issued under this subchapter.
6. As established by the Board by rule, an inspector may charge a fee not to exceed $250.00 for each inspection, and this fee shall be subject to the provisions of 32 V.S.A. chapter 7, subchapter 6.
7. [Repealed.]

   Added 2001, No. 60 , § 1, eff. July 1, 2002; amended 2007, No. 153 (Adj. Sess.), § 6b.

§ 153. Insurance requirements; license.

A licensed elevator inspector shall submit to the Department an insurance policy, or certified copy issued by an insurance company authorized to do business in Vermont, that provides general liability coverage in an amount to be determined, by rule.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 154. Enforcement.

1. The Commissioner may contract with elevator inspectors to perform random on-site inspections and tests on existing conveyances, conduct periodic inspections and tests to ensure satisfactory performance by licensed individuals, and develop public awareness programs.
2. If the Commissioner finds a violation of this subchapter, the Commissioner may:
   1. order the owner of the premises or the owner's agent and the individuals performing the work to correct or remove the violation;
   2. suspend or retract the permit; or
   3. order the owner, a public utility, or a private party furnishing electricity to the installation not to connect or disconnect electrical energy from the conveyance until the violation is corrected.

      Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 155. Liability.

This subchapter shall not be construed to relieve any person that owns, operates, controls, maintains, erects, constructs, installs, alters, inspects, tests, or repairs any elevator or other conveyance covered by this subchapter from liability for damages to persons or property caused by any defect in any conveyance.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

§ 156. Penalty.

1. Any owner or lessee who violates any of the provisions of this subchapter shall be fined not more than $1,500.00 for each occurrence.
2. The Commissioner may, after notice and hearing, assess an administrative penalty of not more than $1,000.00 for each violation of this subchapter.
3. Any person who erects, constructs, wires, alters, replaces, or maintains any conveyance located in any public building in this State without being licensed as required by this subchapter, or who employs an unlicensed person to perform this work, shall be fined not more than $1,000.00 for each offense.

   Added 2001, No. 60 , § 1, eff. July 1, 2002.

§ 157. Elevator Safety Fund; creation.

The Elevator Safety Fund is created for the purpose of funding the Elevator Safety Inspection and Licensing Program. All revenues from fees collected for licensing elevator mechanics and inspectors, and issuing permits and certificates of operation, shall be deposited in the Fund. The Commissioner, pursuant to an appropriation from the Fund, shall request disbursements from the Fund by the Commissioner of Finance and Management. The Fund shall be maintained by the State Treasurer and shall be managed in accordance with the provisions of 32 V.S.A. chapter 7, subchapter 5.

Added 2001, No. 60 , § 1, eff. June 16, 2001.

§§ 191, 192. Repealed. 1971, No. 205 (Adj. Sess.), § 7, eff. date, see note set out below.

§ 201. Occupational policy.

1. It is the policy of the State of Vermont that in their employment all persons shall be provided by their employers with safe and healthful working conditions at their work place, and that insofar as practicable an employee shall not experience diminished health, functional capacity, or life expectancy as a result of his or her work experience.
2. It is also the policy of the State that practices and procedures prescribed by an employer for performance of work or duties by his or her employees shall not be insofar as practicable, dangerous to the life, body, or well being of the employees.
3. It is the legislative intent that:
   1. The provisions of the Occupational Safety and Health Act of 1970, as enacted by the Congress of the United States of America, which may be administered by a State agency, shall be administered and enforced in this State, by the State.
   2. To effectuate the policy of the State, standards promulgated under the Occupational Safety and Health Act of 1970, enacted by Congress, and as amended at any time, when applicable to employment in the State of Vermont, shall be prescribed in rules made under this subchapter.
   3. The State of Vermont shall cooperate with the appropriate federal agencies in carrying out the purposes of the Occupational Safety and Health Act of 1970 and the VOSHA Code of the State.

      Added 1971, No. 205 (Adj. Sess.), § 1; amended 2013, No. 96 (Adj. Sess.), § 126.

§ 202. General purpose.

The purpose of this chapter is to provide efficient implementation of the policy of the State expressed in section 201 of this title.

Added 1971, No. 205 (Adj. Sess.), § 1.

§ 203. Definitions.

As used in this chapter:

1. "Act" means the Occupational Safety and Health Act of 1970, enacted by the Congress of the United States of America, and rules made thereunder, as amended at any time.
2. "Commissioner" means the Commissioner of Labor or designee.
3. "Department" means the Department of Labor.
4. "Director" means the Director of Occupational Health.
5. "Division" means the Division of Occupational Health.
6. "Employee" means any person engaged in service to an employer for wages, salary or other compensation, excluding an independent contractor.
7. "Employer" means a person, as hereinafter defined, who employs one or more persons.
8. "Person" means a natural person, corporation, partnership, trust, society, club, association, or other organization, including municipalities and the State and its instrumentalities.
9. "Place of employment" means any place where an employee is engaged in performance of his or her work or duties, or which is used in connection with an employee's employment.  It includes structures, buildings, machinery, equipment, tools, appliances, and materials used in connection with the employment.  It also includes land and premises where an employer is carrying on any activity or business involving the use of one or more employees.
10. "Premises" means land and the structures thereon which contains a place of employment as herein defined.
11. "Rule" means a rule or regulation.
12. "VOSHA Code" means subchapters 4 and 5 of this chapter and 18 V.S.A. chapter 28, and the rules adopted thereunder.
13. "Review Board" means the Occupational Safety and Health Review Board.
14. "Secretary of Labor" means the Secretary of Labor of the United States of America.
15. "Secretary" means the Secretary of Human Services.

    Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 17; 1979, No. 121 (Adj. Sess.), § 3; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

§ 204. Rules and procedure.

1. 3 V.S.A. chapter 25, relating to administrative procedure, shall apply to this chapter and the VOSHA Code.
2. All or part of a printed publication of standards or rules, including standards promulgated under the Act, may be made a rule or part of a rule under this chapter or the VOSHA Code, by reference in the rule to the printed publication by its title and where it may be procured at the time the rule is promulgated under this chapter.

   Added 1971, No. 205 (Adj. Sess.), § 1.

§ 205. Variances.

1. In cases involving a work place, the Secretary of Human Services, in the case of health standards, and the Commissioner, in the case of safety standards, may grant a variance from a standard or any provision thereof promulgated in a rule, under the same terms, conditions, and criteria as the federal Secretary of Labor may under sections 6(b)(6) and (d) of the Act.
2. The Secretary of Human Services, in the case of health standards, and the Commissioner, in the case of safety standards, may grant a variance, tolerance, or exemption to and from any or all provisions of the VOSHA Code as found necessary and proper to avoid serious impairment of the national defense.  Such action shall not be taken without the written consent of a federal official authorized to make such variation, tolerance or exemption to and from any or all provisions of the Act.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 8.

§ 206. Inspections and investigations.

1. The Commissioner or the Director, or their agents, may enter upon a premise, upon presenting appropriate credentials to the occupant, at reasonable times, for the purpose of inspecting the premises within reasonable limits and in a reasonable manner, to determine whether the provisions of the VOSHA Code and this chapter and the rules adopted thereunder are being observed.  If entry is refused, the Commissioner or the Director may apply to a Superior judge for an order to enforce the rights given to the Commissioner and the Director and their agents under this section.
2. In making inspections and investigations, the Commissioner or the Director, as the case may be, may require the attendance and testimony of witnesses and the production of evidence under oath.  Witnesses shall be paid the same fees and mileage as are paid witnesses in the Superior courts in criminal cases.  In case of a contumacy, failure, or refusal of any person to obey such an order, any Superior Court within the jurisdiction of which the person is found or resides or transacts business, upon the application by the Commissioner, shall have jurisdiction to issue to the person an order requiring him or her to appear to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question.  Any failure to obey such order of the court may be punished by the court as a contempt thereof.
3. No person shall give advance notice of any inspection under the VOSHA Code, without prior authority of the Commissioner or the Director, which shall be in writing.
4. Under the VOSHA Code, the Secretary of Human Services and the Commissioner shall adopt rules regarding inspections and investigations to conform with the provisions and requirements of the Act.
5. Subject to regulations issued by the Commissioner or Secretary, a representative of the employer and a representative authorized by his or her employees shall be given an opportunity to accompany the Commissioner or Secretary or his or her authorized agent during the physical inspection of any workplace under subsection (a) of this section for the purpose of aiding such inspection.  Where there is no authorized employee representative, the Commissioner or Secretary or his or her authorized agent shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.
6. Any employees or representative of employees who believes that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Commissioner or Secretary or his or her authorized agent of the violation or danger.  The notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees.  A copy of the notice shall be provided the employer or his or her agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his or her name and the names of individual employees referred to therein shall not appear in the copy or on any record published, released, or made available by the Commissioner or Secretary.  If upon receipt of the notification the Commissioner or Secretary determines there are reasonable grounds to believe that a violation or danger exists, he or she shall make a special inspection in accordance with the provisions of this section as soon as practicable to determine if a violation or danger exists.  If the Commissioner or Secretary determines there are no reasonable grounds to believe that a violation or danger exists, he or she shall notify the employees or representative of the employees in writing of such determination.
7. Prior to or during any inspection of a workplace, any employees or representative of employees employed in such workplace may notify the Commissioner or Secretary or any agent of the Commissioner or Secretary responsible for conducting the inspection, in writing, of any violation of this Code which they have reason to believe exists in such workplace.  The Commissioner shall, by regulation, establish procedures for informal review of any refusal by a representative of the Commissioner to issue a citation with respect to any such alleged violation and shall furnish the employees or representative of employees requesting such review a written statement of the reasons for the Commissioner's final disposition of the case.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 214 (Adj. Sess.), § 9.

§ 207. Trade secrets.

All information reported to or otherwise obtained by the Commissioner or the Director, or their agents, in connection with any inspection or proceeding under this chapter or the VOSHA Code, which contains or might reveal a trade secret referred to in 18 U.S.C. § 1905 shall be considered confidential, except that such information may be disclosed to other officers or employees concerned in carrying out the provisions of this chapter or the VOSHA Code. In any proceeding, the Commissioner, Director, Board, or court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

Added 1971, No. 205 (Adj. Sess.), § 1.

§ 208. Imminent danger.

1. Whenever the Commissioner finds that any workplace is in violation of any portion of the VOSHA Code or this chapter and that the violation creates a dangerous condition that can be reasonably expected to cause imminent death or serious physical harm, the Commissioner may order the workplace or any portion of the workplace to be immediately closed or order that steps be taken to avoid, correct, or remove the imminently dangerous conditions. The Commissioner may permit the presence of individuals necessary to avoid, correct, or remove the imminent danger, or to maintain the capacity of a continuous process operation to resume normal operations without complete cessation of operations, or where a cessation of operations is necessary, to permit it to be accomplished in a safe and orderly manner. On two business days' notice to the Commissioner, an order issued under this section may be contested by filing a petition in Superior Court requesting dissolution or modification of the order. In that event, the court shall proceed to hear and to make an expeditious determination.
2. In the event the court vacates or otherwise invalidates the Commissioner's order based upon a finding of willful misconduct or gross negligence, the court may determine the amount of damages suffered by the employer on account of the issuance of the order and shall enter judgment in that amount for the employer.
3. Any employer who violates an order of the Commissioner issued pursuant to subsection (a) of this section shall be fined not more than $5,000.00 per day.
4. Notice of orders issued under this section shall be served by certified mail with return receipt requested or in person to all parties who have a recorded interest in the property where land records for the property are recorded, including owners, tenants, mortgagees, attaching creditors, lien holders, and public utilities or water companies serving the premises.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 10; 1985, No. 150 (Adj. Sess.), § 1; 2017, No. 11 , § 50.

§ 209. Appeals.

Except as to matters provided for in subchapter 5 of this chapter, a person aggrieved by an order or action of the Commissioner under this chapter, or a rule thereunder, may appeal to the Superior Court for the order or action within 20 days after the order is issued or the action is taken. In the Superior Court, the matter will be heard de novo. Appeal may be taken to the Supreme Court from the Superior Court. The Superior Court for the county within which the appellant resides or has a place of business shall have jurisdiction.

Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

§ 210. Penalties.

1. Upon issuance of a citation under this chapter, the Review Board is authorized to assess civil penalties for grounds provided in this subsection. In assessing civil penalties, the Review Board shall follow to the degree practicable the federal procedures prescribed in rules adopted under the Act. The Review Board shall give due consideration to the appropriateness of the penalty with respect to the size of the business or operation of the employer being assessed, the gravity of the violation, the good faith of the employer, and the history of previous violations. Civil penalties shall be paid to the Commissioner for deposit with the State Treasurer, and may be recovered in a civil action in the name of the State of Vermont brought in any court of competent jurisdiction. The Commissioner shall not reduce the assessed penalties in any fiscal year by more than 50 percent.
   1. Any employer that willfully or repeatedly violates the requirements of this Code or any standard or rule adopted, or order issued pursuant to this Code may be assessed a civil penalty of not more than $126,749.00 for each violation, but not less than $5,000.00 for each willful violation.
   2. Any employer that has received a citation for a serious violation of the requirements of this Code, or any standard or rule adopted, or order issued pursuant to this Code, shall be assessed a civil penalty of up to $12,675.00 for each violation.
   3. Any employer that has received a citation for a violation of the requirements of this Code, or any standard or rule adopted, or order issued pursuant to this Code, if the violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $12,675.00 for each such violation.
   4. Any employer that fails to correct a violation for which a citation has been issued within the period permitted for its correction, which period shall not begin to run until the date of the final order of the Review Board, in the case of any review proceeding under section 226 of this title initiated by the employer in good faith and not solely for delay or avoidance of penalties, may be assessed a civil penalty of not more than $12,675.00 for each day during which the failure or violation continues.
   5. Any employer that willfully violates any standard or rule adopted, or order issued pursuant to this Code, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $126,749.00 or by imprisonment for not more than one year, or by both.
   6. Any person who gives advance notice of any inspection to be conducted under this Code, without authority from the Commissioner or Director or designees, shall, upon conviction, be punished by a fine of not more than $ 1,000.00 or by imprisonment for not more than six months, or by both.
   7. Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Code shall, upon conviction, be punished by a fine of not more than $10,000.00 or by imprisonment for not more than six months, or by both.
   8. Any employer that violates any of the posting requirements, as prescribed under the provisions of this Code, shall be assessed a civil penalty of up to $12,675.00 for each violation.
   9. 1. As provided under the federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and the Act, the penalties provided in subdivisions (1), (2), (3), (4), (5), and (8) of this subsection (a) shall annually, on January 1, be adjusted to reflect the increase in the Consumer Price Index, CPI-U, U.S. City Average, not seasonally adjusted, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous December 1. (9) (A) As provided under the federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and the Act, the penalties provided in subdivisions (1), (2), (3), (4), (5), and (8) of this subsection (a) shall annually, on January 1, be adjusted to reflect the increase in the Consumer Price Index, CPI-U, U.S. City Average, not seasonally adjusted, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous December 1.
      2. The Commissioner shall calculate and publish the adjustment to the penalties on or before January 1 of each year, and the penalties shall apply to fines imposed on or after that date.
2. For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition that exists, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use, in such place of employment unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 11; 1985, No. 150 (Adj. Sess.), § 2; 1991, No. 23 , § 1, eff. May 3, 1991; 2003, No. 66 , § 74; 2017, No. 69 , § D.1, eff. June 8, 2017.

§ 221. State plan and cooperation.

The State of Vermont desires to assume responsibility for the development and enforcement of occupational safety and health standards within the State. To that end the Commissioner shall submit plans and reports to the appropriate federal official or agency, under the provisions of the Occupational Safety and Health Act of 1970 (PL. 91-596), enacted by the Congress of the United States of America. The Department and the Division shall cooperate with the appropriate federal agencies in carrying out the purposes of the Act and the VOSHA Code.

Added 1971, No. 205 (Adj. Sess.), § 1.

§ 222. Application.

The VOSHA Code shall apply with respect to employers, employees, and employment in or at a work place in the State of Vermont, except that:

1. Standards applicable to products which are distributed or used in interstate commerce which are different from federal standards for such products shall not be promulgated under the VOSHA Code unless such standards are required by compelling local conditions and do not unduly burden interstate commerce.
2. Nothing in the VOSHA Code shall be construed to supersede or in any manner affect the workers' compensation laws of this State pursuant to chapters 9 and 11 of this title, or enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 12; 1981, No. 165 (Adj. Sess.), § 1.

§ 223. Duties.

1. Each employer shall furnish to each of his or her employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or significant physical harm to his or her employees; and the employer shall comply with safety and health standards promulgated under the VOSHA Code.
2. Each employee shall comply with the safety and health standards and all rules, regulations, and orders of the VOSHA Code which are applicable to his or her own actions or conduct.

   Added 1971, No. 205 (Adj. Sess.), § 1.

§ 224. Rules and standards.

1. The Commissioner shall adopt rules and standards necessary to implement the purposes and duties set forth in this subchapter insofar as they relate to safety and to enforcement of the VOSHA Code.
2. The Commissioner, in consultation with the Secretary of Human Services, shall adopt rules and standards necessary to implement the purposes of the VOSHA Code and duties thereunder, insofar as they relate to health.
3. Any standard adopted under this section shall prescribe the use of labels or other appropriate forms of warning as are necessary to inform employees of all safety or health hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions for safe use or exposure. Where appropriate, a rule shall prescribe suitable protective clothing, devices, or equipment which shall be provided by the employer, and control or technological procedures to be used in connection with the safety or health hazard; and shall provide for monitoring or measuring employee exposure at such locations and intervals and in such manner as may be necessary for the protection of employees.
4. Where appropriate, a standard adopted in consultation with the Secretary of Human Services may prescribe the type and frequency of medical examinations or other tests which shall be made available by an employer or at the expense of the employer, to employees exposed to health hazards in employment, in order to effectively determine whether the health of the employee is adversely affected by exposure to the hazard. In the event medical examinations are in the nature of research, as determined by the Secretary of Human Services, such examinations may be furnished at the expense of the State. The results of the examinations or tests shall be furnished only to the Secretary of Human Services, the Commissioner of Health, the Director of Occupational Health, the Commissioner of Labor, and at the request of the employee, to the employee's physician and the employee.
5. The Commissioner, in consultation with the Secretary, in adopting standards dealing with toxic materials or harmful physical agents under this section, shall set the standard which most adequately ensures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his or her working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of safety and health protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other safety and health laws. Whenever practicable, the standard adopted shall be expressed in terms of objective criteria and of the performance desired.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 18; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2015, No. 23 , § 119; 2015, No. 87 (Adj. Sess.), § 2; 2015, No. 97 (Adj. Sess.), § 54.

§ 225. Citations.

1. 1. If, upon inspection or investigation, the Commissioner or the Director or the agent of either of them finds that an employer has violated a requirement of the VOSHA Code, the Commissioner shall with reasonable promptness issue a citation to the employer and serve it on the employer by certified mail or in the same manner as a summons to the Superior Court. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of the statute, standard, rule, or order alleged to have been violated, as well as the penalty, if any, proposed to be assessed pursuant to section 210 of this title. In addition, the citation shall fix a reasonable time for the abatement of the violation. (a) (1)  If, upon inspection or investigation, the Commissioner or the Director or the agent of either of them finds that an employer has violated a requirement of the VOSHA Code, the Commissioner shall with reasonable promptness issue a citation to the employer and serve it on the employer by certified mail or in the same manner as a summons to the Superior Court. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of the statute, standard, rule, or order alleged to have been violated, as well as the penalty, if any, proposed to be assessed pursuant to section 210 of this title. In addition, the citation shall fix a reasonable time for the abatement of the violation.
   2. By rule, the Commissioner shall adopt procedures for issuance of a notice in lieu of a citation with respect to de minimis violations that have no direct or immediate relationship to safety or health and for hearing interested parties before a civil penalty is assessed.
2. Each citation issued under this section, or a copy or copies of the citation, shall be prominently posted, as prescribed in rules adopted by the Commissioner, at or near each place a violation referred to in the citation occurred or existed.
3. A citation issued under this section may be served by an agent of the Commissioner, who shall make return in the same manner as sheriffs, deputy sheriffs, or constables make after serving a summons.
4. A citation may not be issued after six months following the inspection or investigation that reveals the violation.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 54 , § 69, eff. June 1, 2009; 2017, No. 148 (Adj. Sess.), § 6, eff. May 21, 2018.

§ 226. Enforcement.

1. 1. An employer shall, within 20 days after personal service or receipt of a citation issued under section 225 of this title, notify the Commissioner that he or she wishes to appeal the citation or proposed penalty. (a) (1)  An employer shall, within 20 days after personal service or receipt of a citation issued under section 225 of this title, notify the Commissioner that he or she wishes to appeal the citation or proposed penalty.
   2. If an employer does not notify the Commissioner as provided in this subsection and an employee does not file a notice under subsection (c) of this section, the citation and penalty, as proposed, shall be deemed a final order of the Review Board and not subject to review by any court or agency.
2. 1. 1. If the Commissioner on inspection or investigation finds that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction, the Commissioner shall notify the employer by certified mail of the failure and of the penalty proposed to be assessed under section 210 of this title by reason of the failure. (b) (1) (A)  If the Commissioner on inspection or investigation finds that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction, the Commissioner shall notify the employer by certified mail of the failure and of the penalty proposed to be assessed under section 210 of this title by reason of the failure.
      2. The period to correct a violation shall begin to run:
         1. when a final order is entered by the Review Board in relation to review proceedings under this section that are initiated by an employer in good faith and not solely for delay or avoidance of penalties; or
         2. on the day the citation and penalty become final under subsection (a) of this section.
   2. The employer shall have 20 days after the receipt of the notice to notify the Commissioner that he or she wishes to appeal the Commissioner's citation or the proposed penalty. If, within 20 days from the receipt of the notification issued by the Commissioner, the employer fails to notify the Commissioner that he or she intends to appeal, the citation and assessment, as proposed, shall be deemed a final order of the Review Board and not subject to review by any court or agency.
3. If an employer notifies the Commissioner that he or she intends to contest a citation issued under section 225 of this title, or if, within 20 days after the issuance of a citation issued under section 225 of this title, any employee or representative of employees files a notice with the Commissioner alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Commissioner shall immediately advise the Review Board of the notification and the Review Board shall afford an opportunity for a hearing. Unless a notice is timely filed, the proposed penalty and, in appropriate cases, the citation shall be deemed a final order of the Review Board not subject to review by any court or agency.
4. After hearing an appeal, the Review Board shall issue an order based on findings of fact that affirms, modifies, or vacates the Commissioner's citation or proposed penalty, or both, or provides other appropriate relief. The order shall become final 30 days after its issuance unless judicial review is timely taken under section 227 of this title. The rules of procedure adopted by the Review Board shall provide affected employees or their representatives with an opportunity to participate as parties in a hearing under this subsection.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 13; 2017, No. 148 (Adj. Sess.), § 7, eff. May 21, 2018.

§ 227. Judicial review.

1. Any person adversely affected or aggrieved by an order of the Review Board may appeal to any Superior Court for the county in which the violation is alleged to have occurred or where the employer has its principal office. The appeal shall be taken within 30 days following the issuance of such order. The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Review Board and enforcing the same to the extent that such order is affirmed or modified. The commencement of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the Review Board. No objection that has not been urged before the Review Board shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Review Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the hearing before the Review Board, the court may order such additional evidence to be taken before the Review Board and to be made a part of the record. The Review Board may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court. Judicial review under this subsection shall be considered expeditiously.
2. The Commissioner may also obtain a review or enforcement of any final order of the Review Board by filing a petition for such relief in the Superior Court within the jurisdiction of which the alleged violation occurred or in which the employer has its principal office and the provisions of subsection (a) of this section shall govern such proceedings to the extent applicable. If judicial review is not sought within 30 days after service of the Review Board's order, the Review Board's findings of fact and order shall be conclusive in connection with any petition for enforcement which is filed by the Commissioner after the expiration of such 30-day period. In any such case, as well as in the case of a noncontested citation or notification by the Commissioner, which has become a final order of the Review Board, the clerk of the court, unless otherwise ordered by the court, shall forthwith enter a decree enforcing the order and shall transmit a copy of such court decree to the Commissioner and the employer named in the petition. In any contempt proceeding brought to enforce a court decree entered pursuant to this subsection or subsection (a) of this section, the court may assess the penalties provided in addition to invoking any other available remedies.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 14; 1997, No. 161 (Adj. Sess.), § 16, eff. Jan. 1, 1998.

§ 228. Reports.

1. Employers shall keep and file all reports and records required under the Act, and any reports and records which the Commissioner or the Secretary of Human Services may require by rule.
2. The Commissioner shall make such reports to the Secretary of Labor in such form and containing such information as the Secretary shall from time to time require.
3. 1. Each employer shall make, keep, and preserve, and make available to the Secretary of the U.S. Department of Labor or the Secretary of Health and Human Services, such records regarding his or her activities relating to the Act as the Secretary of the U.S. Department of Labor, in cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or appropriate for the enforcement of the Act or for developing information regarding the causes and prevention of occupational accidents and illnesses.  In order to carry out the provisions of this subdivision, such regulations may include provisions requiring employers to conduct periodic inspections.  The Commissioner shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Code, including the provisions of applicable standards. (c) (1)  Each employer shall make, keep, and preserve, and make available to the Secretary of the U.S. Department of Labor or the Secretary of Health and Human Services, such records regarding his or her activities relating to the Act as the Secretary of the U.S. Department of Labor, in cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or appropriate for the enforcement of the Act or for developing information regarding the causes and prevention of occupational accidents and illnesses.  In order to carry out the provisions of this subdivision, such regulations may include provisions requiring employers to conduct periodic inspections.  The Commissioner shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Code, including the provisions of applicable standards.
   2. The Commissioner in cooperation with the Secretary, shall issue regulations requiring employees to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 224 of this title.  Such regulations shall provide employees or their representative with an opportunity to observe such monitoring or measuring, and to have access to the records thereof.  Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will indicate his or her own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under section 224 of this title and shall inform any employee who is being thus exposed of the corrective action being taken.

      Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 214 (Adj. Sess.), § 19.

§ 229. Repealed. 2009, No. 135 (Adj. Sess.), § 26(9).

§ 230. Occupational Safety and Health Review Board.

1. An Occupational Safety and Health Review Board is created.  It shall consist of three members who shall be appointed by the Governor, with the advice and consent of the Senate.  The members of the Board shall be appointed for terms of six years, but initially in a manner so that one term expires in two years, one term in four years, and one term in six years. Thereafter, biennially, in the month of February, with the advice and consent of the Senate, the Governor shall appoint a person as a member of such Board for the term of six years, whose term of office shall commence on March 1 of the year in which such appointment is made.  The Governor, biennially, shall designate a member of such Board to be its Chair.
2. With the approval of the Secretary of Administration, the Board may employ such employees as it deems necessary, and may without such approval employ and remove a clerk and a reporter for taking and transcribing testimony in hearings before it and such hearing judges as it deems necessary to hear appeals on behalf of the Board.  Compensation for employees of the Board shall be fixed by the Commissioner of Human Resources. The hearing judge appointed by the Board shall hear, and make a determination upon, any proceeding instituted before the Board and any motion in connection therewith, assigned to such hearing judge by the Chair of the Board, and shall make a report of any such determination which constitutes his or her final disposition of the proceedings.  The report of the hearing judge shall become the final order of the Board within 30 days after such report by the hearing examiner, unless within such period any Board member has directed that such report shall be reviewed by the Board.
3. Every official act of the Board shall be entered on record, and its hearings and records shall be open to the public.
4. The Board is authorized to make such rules as are necessary for the orderly transaction of its proceedings.  Unless the Board has adopted a different rule, its proceedings shall be in accordance with the rules promulgated by the Supreme Court for the Superior Courts.
5. The office of the Board shall be located in Montpelier, but proceedings shall be held at places within the State convenient to persons appearing before it.
6. The compensation of members of the Board shall be fixed by the Commissioner of Human Resources.
7. The Board shall be attached to the Governor's office for administrative purposes.

   Added 1971, No. 205 (Adj. Sess.), § 1; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 214 (Adj. Sess.), § 15; 1981, No. 34 , § 1; 2003, No. 156 (Adj. Sess.), § 15.

§ 231. Employee rights.

1. No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself, herself, or others of any right afforded by this chapter.
2. Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of this section may, within 30 days after such violation occurs, file a complaint with the Commissioner alleging such discrimination.  Upon receipt of such complaint, the Commissioner shall cause such investigation to be made as he or she deems appropriate.  If upon such investigation, the Commissioner determines that the provisions of this section have been violated, he or she shall bring an action in any appropriate State court against such person.  In any such action, the State courts shall have jurisdiction, for cause shown to restrain violations of subsection (a) of this section and order all appropriate relief, including rehiring or reinstatement of the employee to his or her former position with back pay.
3. Within 90 days of the receipt of a complaint filed under this section, the Commissioner shall notify the complainant of his or her determination under subsection (b) of this section.

   Added 1973, No. 214 (Adj. Sess.), § 20.

§ 232. Private right of action.

An employee aggrieved by a violation of section 231 of this title may bring an action in Superior Court for appropriate relief, including reinstatement, triple wages, damages, costs, and reasonable attorney's fees. Such an action may be brought in addition to or in lieu of an action under section 231 of this title.

Added 1989, No. 164 (Adj. Sess.).

§§ 241-246. Repealed. 2003, No. 141 (Adj. Sess.), § 12, eff. April, 1, 2005.

§§ 251-257. Repealed. 2003, No. 141 (Adj. Sess.), § 12, eff. April 1, 2005.

§ 258. Repealed. 2005, No. 8, § 18, eff. April 1, 2005.

§§ 261-264. Repealed. 2003, No. 141 (Adj. Sess.), § 12.

§§ 266-269. Recodified. 2013, No. 89, § 11.

§§ 271-277. Repealed. 2003, No. 141 (Adj. Sess.), § 12.

§ 286. Repealed. 2003, No. 141 (Adj. Sess.), § 12.

§ 301. Medical examination, expense.

It shall be unlawful for any employer, as defined in section 302 of this title, to require any employee or applicant for employment to pay the cost of a medical examination as a condition of employment.

§ 302. Definitions.

For the purposes of this subchapter:

1. "Employer" means any individual, organization, or governmental body, including any partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this State, and any agent of the employer, that has one or more individuals performing services for it within this State.
2. "Employee" means every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.

   Amended 2007, No. 144 (Adj. Sess.), § 1.

§ 303. Penalty; judicial bureau.

Any employer who violates the provisions of this subchapter shall be assessed a civil penalty of not more than $100.00 for each and every violation.

Amended 2007, No. 144 (Adj. Sess.), § 3.

§ 304. Employment conditions.

An employer shall provide an employee with reasonable opportunities during work periods to eat and to use toilet facilities in order to protect the health and hygiene of the employee.

Added 1997, No. 115 (Adj. Sess.), § 1, eff. Jan. 1, 1999.

§ 305. Nursing mothers in the workplace.

1. For an employee who is a nursing mother, the employer shall for three years after the birth of a child:
   1. Provide reasonable time, either compensated or uncompensated, throughout the day to express breast milk for her nursing child. The decision to provide compensated time shall be in the sole discretion of the employer, unless modified by a collective bargaining agreement.
   2. Make a reasonable accommodation to provide appropriate private space that is not a bathroom stall.
2. An employer may be exempted from the provisions of subsection (a) of this section if providing time or an appropriate private space for expressing breast milk would substantially disrupt the employer's operations.
3. An employer shall not retaliate or discriminate against an employee who exercises or attempts to exercise the rights provided under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.
4. In lieu of an enforcement action through the Vermont Judicial Bureau, the Attorney General or a State's Attorney may enforce the provisions of this section by bringing a civil action for temporary or permanent injunctive relief, economic damages, including prospective lost wages for a period not to exceed one year, and investigative and court costs. The Attorney General or a State's Attorney may conduct an investigation of an alleged violation and enter into a settlement agreement with the employer. Such investigation shall not be a prerequisite to bringing a court action.

   Added 2007, No. 144 (Adj. Sess.), § 2; amended 2013, No. 31 , § 4; 2017, No. 74 , § 32.

§ 306. Public policy of the State of Vermont; employment separation agreements.

In support of the State's fundamental interest in protecting the safety of minors and vulnerable adults, as defined in 33 V.S.A. § 6902 , it is the policy of the State of Vermont that no confidential employment separation agreement shall inhibit the disclosure to prospective employers and responsible licensing entities of factual information about a prospective employee's background that would lead a reasonable person to conclude that the prospective employee has engaged in conduct jeopardizing the safety of a minor or vulnerable adult. Any provision in an agreement entered into on or after the effective date of this section that attempts to do so is void and unenforceable.

Added 2009, No. 157 (Adj. Sess.), § 17, eff. June 3, 2010; amended 2018, No. 5 (Sp. Sess.), § 4, eff. June 19, 2018.

§ 307. Repealed. 2011, No. 56, § 27(2), eff. May 31, 2011.

§ 308. Repealed. 2011, No. 56 § 28(2).

§ 309. Flexible working arrangements.

1. 1. An employee may request a flexible working arrangement that meets the needs of the employer and employee. The employer shall consider a request using the procedures in subsections (b) and (c) of this section at least twice per calendar year. (a) (1)  An employee may request a flexible working arrangement that meets the needs of the employer and employee. The employer shall consider a request using the procedures in subsections (b) and (c) of this section at least twice per calendar year.
   2. As used in this section, "flexible working arrangement" means intermediate or long-term changes in the employee's regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing. "Flexible working arrangement" does not include vacation, routine scheduling of shifts, or another form of employee leave.
2. 1. The employer shall discuss the request for a flexible working arrangement with the employee in good faith. The employer and employee may propose alternative arrangements during the discussion. (b) (1)  The employer shall discuss the request for a flexible working arrangement with the employee in good faith. The employer and employee may propose alternative arrangements during the discussion.
   2. The employer shall consider the employee's request for a flexible working arrangement and whether the request could be granted in a manner that is not inconsistent with its business operations or its legal or contractual obligations.
   3. As used in this section, "inconsistent with business operations" includes:
      1. the burden on an employer of additional costs;
      2. a detrimental effect on aggregate employee morale unrelated to discrimination or other unlawful employment practices;
      3. a detrimental effect on the ability of an employer to meet consumer demand;
      4. an inability to reorganize work among existing staff;
      5. an inability to recruit additional staff;
      6. a detrimental impact on business quality or business performance;
      7. an insufficiency of work during the periods the employee proposes to work; and
      8. planned structural changes to the business.
3. The employer shall notify the employee of the decision regarding the request. If the request was submitted in writing, the employer shall state any complete or partial denial of the request in writing.
4. This section shall not diminish any rights under this chapter or pursuant to a collective bargaining agreement. An employer may institute a flexible working arrangement policy that is more generous than is provided by this section.
5. The Attorney General, a State's Attorney, or the Human Rights Commission in the case of State employees may enforce subsections (b) and (c) of this section by restraining prohibited acts, conducting civil investigations, and obtaining assurances of discontinuance in accordance with the procedures established in subsection 495b(a) of this title. An employer subject to a complaint shall have the rights and remedies specified in subsection 495b(a) of this title. An investigation against an employer shall not be a prerequisite for bringing an action. The Civil Division of the Superior Court may award injunctive relief and court costs in any action. There shall be no private right of action to enforce this section.
6. An employer shall not retaliate against an employee exercising his or her rights under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.
7. Nothing in this section shall affect any legal rights an employer or employee may have under applicable law to create, terminate, or modify a flexible working arrangement.

   Added 2013, No. 31 , § 6, eff. Jan. 1, 2014.

§ 341. Definitions.

As used in this subchapter:

1. "Employee" means a person who has entered into the employment of an employer, where the employer is unable to show that:
   1. the individual has been and will continue to be free from control or direction over the performance of such services, both under the contract of service and in fact; and
   2. the service is either outside all the usual course of business for which such service is performed, or outside all the places of business of the enterprise for which such service is performed; and
   3. the individual is customarily engaged in an independently established trade, occupation, profession, or business.
2. "Employer" means any person having employees in his or her service.
3. "Commissioner" means the Commissioner of Labor or designee.
4. "Department" means the Department of Labor.
5. "Wages" means all remuneration payable for services rendered by an employee, including salary, commissions, and incentive pay.

   Amended 1963, No. 198 , § 1; 1995, No. 184 (Act. Sess.), § 3; 2013, No. 15 , § 1.

§ 342. Weekly payment of wages.

1. 1. Any employer having one or more employees doing and transacting business within the State shall pay each week, in lawful money or checks, the wages earned by each employee to a day not more than six days prior to the date of such payment. (a) (1)  Any employer having one or more employees doing and transacting business within the State shall pay each week, in lawful money or checks, the wages earned by each employee to a day not more than six days prior to the date of such payment.
   2. After giving written notice to the employee or employees, any employer having an employee or employees doing and transacting business within the State may, notwithstanding subdivision (1) of this subsection, pay biweekly or semimonthly in lawful money or checks each employee the wages earned by the employee to a day not more than six days prior to the date of the payment. If a collective bargaining agreement so provides, the payment may be made to a day not more than 13 days prior to the date of payment.
   3. A school district employee may elect in writing to have a set amount or set percentage of his or her after-tax wages withheld by the school district in a district-held bank account each pay period. The percentage or amount withheld shall be determined by the employee. At the option of the employee, the school district shall disburse the funds to the employee in either a single payment at the time the employee receives his or her final paycheck of the school year, or in equal weekly or biweekly sums beginning at the end of the school year. The school district shall disburse funds from the account in any sum as requested by the employee and, at the end of the school year or at the employee's option over the course of the period between the current and next school year, or upon separation from employment, shall remit to the employee any remaining funds, including interest earnings, held in the account. For employees within a bargaining unit organized pursuant to either chapter 22 of this title or 16 V.S.A. chapter 57, the school district shall implement this election in a manner consistent with the provisions of this subdivision and as determined through negotiations under those chapters. For employees not within a bargaining unit, the school district shall, in a manner consistent with this subdivision, determine the manner in which to implement this subdivision.
2. An employee who:
   1. voluntarily leaves employment shall be paid on the last regular pay day, or if there is no regular pay day, on the following Friday;
   2. is discharged from employment shall be paid within 72 hours of discharge;
   3. is absent from his or her regular place of employment on the employer's regular scheduled date of wages or salary payment shall be entitled to payment upon demand.
3. With the written authorization of an employee, an employer may pay wages due the employee by any of the following methods:
   1. Deposit through electronic funds transfer or other direct deposit systems to a checking, savings, or other deposit account maintained by or for the employee in any financial institution within or without the State.
   2. Credit to a payroll card account directly or indirectly established by an employer in a federally insured depository institution to which electronic fund transfers of the employee's wages, salary, or other employee compensation is made on a recurring basis, other than a checking, savings, or other deposit account described in subdivision (1) of this subsection, provided all the following:
      1. The employer provides the employee written disclosure in plain language, in at least 10-point type of both the following:
         1. All the employee's wage payment options.
         2. The terms and conditions of the payroll card account option, including a complete list of all known fees that may be deducted from the employee's payroll card account by the employer or the card issuer and whether third parties may assess fees in addition to the fees assessed by the employer or issuer.
      2. Copies of the written disclosures required by subdivisions (A) and (F) of this subdivision (c)(2) and by subsection (d) of this section shall be provided to the employee in the employee's primary language or in a language the employee understands.
      3. The employee voluntarily consents in writing to payment of wages by payroll card account after receiving the disclosures described in subdivision (A) of this subdivision (c)(2), and this consent is not a condition of hire or continued employment.
      4. The employer ensures that the payroll card account provides that during each pay period, the employee has at least three free withdrawals from the payroll card, one of which permits withdrawal of the full amount of the balance at a federally insured depository institution or other location convenient to the place of employment.
      5. None of the employer's costs associated with the payroll card account are passed on to the employee, and the employer shall not receive any financial remuneration for using the pay card at the employee's expense.
      6. 1. At least 21 days before any change takes effect, the employer provides the employee with written notice in plain language, in at least 10 point type, of the following: (F) (i) At least 21 days before any change takes effect, the employer provides the employee with written notice in plain language, in at least 10 point type, of the following:
            1. any change to any of the terms and conditions of the payroll card account, including any changes in the itemized list of fees;
            2. the employee's right to discontinue receipt of wages by a payroll card account at any time and without penalty.
         2. The employer may not charge the employee any additional fees until the employer has notified the employee in writing of the changes.
      7. The employer provides the employee the option to discontinue receipt of wages by a payroll card account at any time and without penalty to the employee.
      8. The payroll card issued to the employee shall be a branded-type payroll card that complies with both the following:
         1. Can be used at a PIN-based or a signature-based outlet.
         2. The payroll card agreement prevents withdrawals in excess of the account balance and to the extent possible protects against the account being overdrawn.
            1. The employer ensures that the payroll card account provides one free replacement payroll card per year at no cost to the employee before the card's expiration date. A replacement card need not be provided if the card has been inactive for a period of at least 12 months or the employee is no longer employed by the employer.

               (J) A nonbranded payroll card may be issued for temporary purposes and shall be valid for no more than 60 days.

               (K) The payroll card account shall not be linked to any form of credit, including a loan against future pay or a cash advance on future pay.

               (L) The employer shall not charge the employee an initiation, loading, or other participatory fee to receive wages payable in an electronic fund transfer to a payroll card account, with the exception of the cost required to replace a lost, stolen, or damaged payroll card.

               (M) The employer shall ensure that the payroll card account provides to the employee, upon the employee's written or oral request, one free written transaction history each month which includes all deposits, withdrawals, deductions, or charges by any entity from or to the employee's payroll card account for the preceding 60 days. The employer shall also ensure that the account allows the employee to elect to receive the monthly transaction history by electronic mail.

4. 1. If a payroll card account is established with a financial institution as an account that is individually owned by the employee, the employer's obligations and the protections afforded under subsection (c) of this section shall cease 30 days after the employer-employee relationship ends and the employee has been paid his or her final wages. (d) (1)  If a payroll card account is established with a financial institution as an account that is individually owned by the employee, the employer's obligations and the protections afforded under subsection (c) of this section shall cease 30 days after the employer-employee relationship ends and the employee has been paid his or her final wages.
   2. Upon the termination of the relationship between the employer and the employee who owns the individual payroll card account:
      1. the employer shall notify the financial institution of any changes in the relationship between the employer and employee; and
      2. the financial institution holding the individually owned payroll card account shall provide the employee with a written statement in plain language describing a full list of the fees and obligations the employee might incur by continuing a relationship with the financial institution.
5. The Department of Financial Regulation may adopt rules to implement subsection (c) of this section.

   Amended 1963, No. 198 , § 2; 1977, No. 44 , § 1, eff. April 19, 1977; 1977, No. 244 (Adj. Sess.), § 2, eff. May 1, 1978; 1979, No. 100 (Adj. Sess.), § 1; 2009, No. 115 (Adj. Sess.), § 1, eff. May 21, 2010; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2011, No. 154 (Adj. Sess.), § 3; 2013, No. 15 , § 2.

§ 342a. Investigation of complaints of unpaid wages.

1. An employee or the Department on its own motion may file a complaint that wages have not been paid to an employee, not later than two years from the date the wages were due. The Commissioner shall provide notice and a copy of the complaint to the employer by service, or by certified mail sent to the employer's last known address, together with an order to file a response to the specific allegation in the complaint filed by the employee or the Department with the Department within 10 calendar days of receipt.
2. The Commissioner shall investigate the complaint, and may examine the employer's records, enter and inspect the employer's business premises, question such employees, subpoena witnesses, and compel the production of books, papers, correspondence, memoranda, and other records necessary and material to investigate the complaint. If a person fails to comply with any lawfully issued subpoena, or a witness refuses to testify to any matter on which he or she may be lawfully interrogated, the Commissioner may seek an order from the Civil Division of the Superior Court compelling testimony or compliance with the subpoena.
3. If after the investigation wages are found to be due, the Commissioner shall attempt to settle the matter between the employer and employee. If the attempt fails, the Commissioner shall issue a written determination and order for collection, which shall specify the facts and the conclusions upon which the determination is based. The Department shall collect from the employer the amounts due and remit them to the employee. Notice of the determination and the order for collection to the employer shall be provided to all interested parties by certified mail or service.
4. If the Commissioner determines that the unpaid wages were willfully withheld by the employer, the order for collection may provide that the employer is liable to pay an additional amount not to exceed twice the amount of unpaid wages, one-half of which will be remitted to the employee and one-half of which shall be retained by the Commissioner to offset administrative and collection costs.
5. Within 30 days after the date of the collection order, the employer or employee may file an appeal from the determination to a departmental administrative law judge. The appeal shall, after notice to the employer and employee, be heard by the administrative law judge within a reasonable time. The administrative law judge shall review the complaint de novo, and after a hearing, the determination and order for collection shall be sustained, modified, or reversed by the administrative law judge. Prompt notice in writing of the decision of the administrative law judge and the reasons for it shall be given to all interested parties.
6. Notwithstanding any other provision of law, the employer or employee may appeal the decision of the administrative law judge within 30 days by filing a written request with the Employment Security Board. The appeal shall be heard by the Board after notice to the employee and employer. The Board may affirm, modify, or reverse the decision of the administrative law judge solely on the basis of evidence in the record or any additional evidence it may direct to be taken. Prompt notice of the decision of the Board shall be given to the employer and employee in the manner provided by section 1357 of this title. The Board's decision shall be final unless an appeal to the Supreme Court is taken. Testimony given at any hearing upon a complaint of unpaid wages shall be recorded, but the record need not be transcribed unless ordered. The costs of transcription shall be paid by the requesting party.
7. The Commissioner may enforce a final order for collection under this section within two years of the date of the final order in the Civil Division of the Superior Court.

   Subsection (h) effective until July 1, 2026; see also subsection (h) effective July 1, 2026 set out below. Information obtained from any employer, employee, or witness in the course of investigating a complaint of unpaid wages shall be confidential and shall not be disclosed or open to public inspection in any manner that reveals the employee's or employer's identity or be admissible in evidence in any action or proceeding other than one arising under this subchapter. However, such information may be released to any public official for the purposes provided in subdivision 1314(e)(1) of this title or to the Attorney General in relation to investigations conducted pursuant to section 346 of this subchapter as provided pursuant to the terms of the memorandum of understanding between the Attorney General and the Commissioner of Labor executed pursuant to section 3 of this title.

   Subsection (h) effective July 1, 2026; see also subsection (h) effective until July 1, 2026 set out above. Information obtained from any employer, employee, or witness in the course of investigating a complaint of unpaid wages shall be confidential and shall not be disclosed or open to public inspection in any manner that reveals the employee's or employer's identity or be admissible in evidence in any action or proceeding other than one arising under this subchapter. However, such information may be released to any public official for the purposes provided in subdivision 1314(e)(1) of this title.

   Added 1965, No. 182 ; amended 1977, No. 244 (Adj. Sess.), § 3, eff. May 1, 1978; 1999, No. 119 (Adj. Sess.), § 19, eff. May 18, 2000; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2013, No. 15 , § 3; 2013, No. 173 (Adj. Sess.), § 1; 2019, No. 85 (Adj. Sess.), § 5, eff. Feb. 20, 2020; 2019, No. 85 (Adj. Sess.), § 13, eff. July 1, 2026.

§ 342b. Repealed. 1999, No. 119 (Adj. Sess.), § 20, eff. May 18, 2000.

§ 343. Form of payment.

An employer shall not pay employees with any form of evidence of indebtedness, including all scrip, vouchers, due bills, or store orders, unless the employer is in compliance with one or both of the following:

1. The employer is a cooperative corporation in which the employee is a stockholder, in which case, the cooperative corporation shall, upon request of any shareholding employee, pay the shareholding employee as provided in section 342 of this title.
2. Payment is made by check as defined in Title 9A or by an electronic fund transfer as provided in section 342 of this title.

   Amended 1977, No. 244 (Adj. Sess.), § 4, eff. May 1, 1978; 2009, No. 115 (Adj. Sess.), § 1, eff. May 21, 2010.

§ 344. Assignment of future wages.

An assignment of future wages payable under the provisions of section 342 of this title shall not be valid, if made to the employer from whom such wages are to become due, or to anyone in behalf of such employer, or if made or procured to be made to anyone for the purpose of relieving such employer from the obligation to pay under the provisions of section 342. Such employer shall not require an agreement from an employee to accept wages at any other period as a condition of employment.

§ 345. Nonpayment of wages and benefits.

1. Each employer who violates section 342, 343, 482, or 483 of this title shall be fined not more than $5,000.00. Where the employer is a corporation, the president or other officers who have control of the payment operations of the corporation shall be considered employers and liable to the employee for actual wages due when the officer has willfully and without good cause participated in knowing violations of this chapter.
2. In addition to any other penalty or punishment otherwise prescribed by law, any employer who, pursuant to an oral or written employment agreement, is required to provide benefits to an employee shall be liable to the employee for actual damages caused by the failure to pay for the benefits, and where the failure to pay is knowing and willful and continues for 30 days after the payments are due shall be assessed a civil penalty by the Commissioner of not more than $5,000.00.
3. The Commissioner may enforce collection of the fines assessed under this section in the Civil Division of the Superior Court.

   Amended 1963, No. 188 , § 1; 2013, No. 15 , § 4; 2015, No. 69 (Adj. Sess.), § 5, eff. Jan. 1, 2017; 2017, No. 74 , § 33.

§§ 345a Repealed. 2013, No. 15, § 5.

§ 346. Enforcement by Attorney General; employee misclassification. Section 346 repealed effective July 1, 2026.

1. Following the referral of a complaint by the Commissioner of Labor pursuant to the provisions of section 3 of this title, the Attorney General may investigate a complaint that an employer has committed a willful, substantial, or systemic violation of section 342, 343, 348, 482, or 483 of this chapter by misclassifying an employee as an independent contractor and may enforce those provisions by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance, and conducting civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458 -2461 as though the misclassification of an employee is an unfair act in commerce. Any employer complained against shall have the same rights and remedies as specified in 9 V.S.A. §§ 2458 -2461. The Superior Court may impose the same civil penalties and investigation costs and order other relief to the State of Vermont or an aggrieved employee for the misclassification of an employee and any related violations of the provisions of this chapter as they are authorized to impose or order under the provisions of 9 V.S.A. §§ 2458 and 2461 in an unfair act in commerce. In addition, the Superior Court may order restitution of wages or other benefits on behalf of an employee and may order reinstatement and other appropriate relief on behalf of an employee.
2. 1. The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title. (b) (1)  The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title.
   2. Upon receiving notice that the Attorney General has determined that an employing unit has committed a violation of section 342, 343, 348, 482, or 483 of this chapter by misclassifying an employee as an independent contractor, the Commissioners of Financial Regulation and of Taxes shall review whether the employer is in compliance with the insurance or tax laws that are under their jurisdiction.

      Added 2019, No. 85 (Adj. Sess.), § 4, eff. Feb. 20, 2020; repealed on July 1, 2026 by 2019, No. 85 (Adj. Sess.), § 11(b).

§ 347. Forfeiture.

An employer who violates section 342 or 343 of this title shall forfeit to the individual injured twice the value thereof, to be recovered in a civil action, and all costs and reasonable attorney's fees. However, an action may not be maintained under this section unless at the time the action is brought, the wages remain unpaid or improperly paid.

Amended 1977, No. 244 (Adj. Sess.), § 6, eff. May 1, 1978; 1979, No. 100 (Adj. Sess.), § 2; 2013, No. 15 , § 6.

§ 348. Retaliation prohibited.

1. An employer shall not discharge or in any other manner retaliate against an employee because:
   1. the employee lodged a complaint of a violation of this subchapter;
   2. the employee has cooperated with the Commissioner in an investigation of a violation of this subchapter; or
   3. the employer believes that the employee may lodge a complaint or cooperate in an investigation of a violation of this subchapter.
2. Any person aggrieved by a violation of this section may bring an action in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.

   Added 2013, No. 15 , § 8.

§ 381. Declaration of policy.

It is the declared public policy of the State of Vermont that workers employed in any occupation should receive wages sufficient to provide adequate maintenance and to protect their health, and to be fairly commensurate with the value of the services rendered.

§ 382. Coverage.

Employers employing two employees or more are covered by this subchapter.

§ 383. Definitions.

Terms used in this subchapter have the following meanings, unless a different meaning is clearly apparent from the language or context:

1. "Commissioner," the Commissioner of Labor or designee;
2. "Employee," any individual employed or permitted to work by an employer except:
   1. any individual employed in agriculture;
   2. any individual employed in domestic service in or about a private home;
   3. any individual employed by the United States;
   4. any individual employed in the activities of a public supported nonprofit organization, except laundry employees, nurses' aides, or practical nurses;
   5. any individual employed in a bona fide executive, administrative, or professional capacity;
   6. any individual making home deliveries of newspapers or advertising;
   7. taxi-cab drivers;
   8. outside salespersons; and
   9. students working during all or any part of the school year or regular vacation periods.
3. "Occupation," an industry, trade, or business or branch thereof or class of work in which workers are gainfully employed.
4. [Repealed.]

   Amended 1959, No. 109 , eff. April 14, 1959; 1967, No. 177 , § 1, eff. April 17, 1967; 1977, No. 244 (Adj. Sess.), § 7, eff. May 1, 1978; 1985, No. 80 , § 2; 1993, No. 227 (Adj. Sess.), § 34; 2001, No. 47 , § 1; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

§ 384. Employment; wages.

1. 1. An employer shall not employ any employee at a rate of less than $10.96. Beginning on January 1, 2021, an employer shall not employ any employee at a rate of less than $11.75. Beginning on January 1, 2022, an employer shall not employ any employee at a rate of less than $12.55, and on each subsequent January 1, the minimum wage rate shall be increased by five percent or the percentage increase of the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous September 1, whichever is smaller, but in no event shall the minimum wage be decreased. The minimum wage shall be rounded off to the nearest $0.01. (a) (1)  An employer shall not employ any employee at a rate of less than $10.96. Beginning on January 1, 2021, an employer shall not employ any employee at a rate of less than $11.75. Beginning on January 1, 2022, an employer shall not employ any employee at a rate of less than $12.55, and on each subsequent January 1, the minimum wage rate shall be increased by five percent or the percentage increase of the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous September 1, whichever is smaller, but in no event shall the minimum wage be decreased. The minimum wage shall be rounded off to the nearest $0.01.
   2. An employer in the hotel, motel, tourist place, and restaurant industry shall not employ a service or tipped employee at a basic wage rate less than one-half the minimum wage. As used in this subsection, "a service or tipped employee" means an employee of a hotel, motel, tourist place, or restaurant who customarily and regularly receives more than $120.00 per month in tips for direct and personal customer service.
   3. If the minimum wage rate established by the U.S. government is greater than the rate established for Vermont for any year, the minimum wage rate for that year shall be the rate established by the U.S. government.
2. Notwithstanding subsection (a) of this section, an employer shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek.  However, this subsection shall not apply to:
   1. Employees of any retail or service establishment.  A "retail or service establishment" means an establishment 75 percent of whose annual volume of sales of goods or services, or of both, is not for resale and is recognized as retail sales or services in the particular industry.
   2. Employees of an establishment which is an amusement or recreational establishment, if:
      1. it does not operate for more than seven months in any calendar year; or
      2. during the preceding calendar year its average receipts for any six months of that year were not more than one-third of its average receipts for the other six months of the year.
   3. Employees of an establishment that is a hotel, motel, or restaurant.
   4. Employees of hospitals, public health centers, nursing homes, maternity homes, therapeutic community residences, and residential care homes as those terms are defined in Title 18, provided:
      1. the employer pays the employee on a biweekly basis; and
      2. the employer files an election to be governed by this section with the Commissioner; and
      3. the employee receives not less than one and one-half times the regular wage rate for any work done by the employee:
         1. in excess of eight hours for any workday; or
         2. in excess of 80 hours for any biweekly period.
   5. Those employees of a business engaged in the transportation of persons or property to whom the overtime provisions of the federal Fair Labor Standards Act do not apply, but shall apply to all other employees of such businesses.
   6. Those employees of a political subdivision of this State.
   7. State employees who are covered by the federal Fair Labor Standards Act.
3. However, an employer may deduct from the rates required in subsections (a) and (b) of this section the amounts for board, lodging, apparel, rent, or utilities paid or furnished or other items or services or such other conditions or circumstances as may be usual in a particular employer-employee relationship, including gratuities as determined by the wage order made under this subchapter.
4. For the purposes of earned sick time, an employer shall comply with the provisions required under subchapter 4B of this chapter.

   Amended 1959, No. 32 , eff. Sept. 1, 1959; 1965, No. 35 , § 1, eff. Oct. 1, 1965; 1967, No. 177 , § 2, eff. April 17, 1967; 1969, No. 67 , §§ 1, 2, eff. April 17, 1969; 1969, No. 190 (Adj. Sess.); 1971, No. 203 (Adj. Sess.); 1973, No. 265 (Adj. Sess.), eff. April 16, 1974; 1977, No. 244 (Adj. Sess.), § 8, eff. May 1, 1978; 1985, No. 80 , § 1; 1987, No. 181 (Adj. Sess.); 1989, No. 131 (Adj. Sess.), § 1, eff. March 29, 1990; 1993, No. 227 (Adj. Sess.), §§ 33, 35; 1995, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 1997; 1997, No. 4 , § 1; 1999, No. 21 , § 1, eff. May 13, 1999; 1999, No. 119 (Adj. Sess.), § 7, eff. May 18, 2000; 2003, No. 67 , § 25a; 2005, No. 82 , § 1; 2007, No. 78 , § 1; 2009, No. 54 , § 31; eff. June 1, 2009; 2013, No. 176 (Adj. Sess.), § 1, eff. Jan. 1, 2015; 2015, No. 69 (Adj. Sess.), § 3, eff. Jan. 1, 2017; 2019, No. 86 (Adj. Sess.), § 1.

§ 385. Administration.

The Commissioner and the Commissioner's authorized representatives have full power and authority for all the following:

1. To enforce and administer the provisions of this chapter, including the power to conduct investigations and take any other action considered necessary or suitable for the administration of this chapter. In the discharge of duties under this chapter, the Commissioner may administer oaths, take depositions, certify to official acts, subpoena witnesses, and compel production of any documents and records necessary and material to the administration of this chapter.
2. To enter and inspect any place of business or employment, question any employees, and investigate any records, facts, conditions, or matters that are deemed appropriate and that in any way appertain to or have a bearing upon the question of wages due under the provisions of this chapter.
3. To require from any employer full and correct statements in writing of the wages paid to all employees employed by that employer necessary to investigate and enforce the provisions of this chapter.
4. To recommend and determine the amount of deductions for board, lodging, or other items or services supplied by the employer or any other conditions or circumstances as may be usual in a particular employer-employee relationship, including gratuities; provided, however, that in no case shall the total remuneration received by an employee, including wages, board, lodging, or other items or services supplied by the employer, including gratuities, be less than the minimum wage rate set forth in section 384 of this title. No deduction may be made for the care, cleaning, or maintenance of required apparel. No deduction for required apparel shall be made without the employee's express written authorization and the deduction shall not:
   1. reduce the total remuneration received by an employee below the hourly minimum wage;
   2. include any administrative fees or charges; or
   3. amend, nullify, or violate the terms and conditions of any collective bargaining agreement.
5. To recommend a suitable scale of rates for learners, apprentices, and persons with disabilities, which may be less than the regular minimum wage rate for experienced workers without disabilities.

   Amended 2001, No. 47 , § 2; 2005, No. 212 (Adj. Sess.), § 10, eff. May 29, 2006; 2007, No. 182 (Adj. Sess.), § 10, eff. June 2, 2008.

§ 386. Investigations.

The Commissioner may, and on a petition of 50 or more residents of the State shall, make an investigation of any industry, business, occupation, or employment as set forth in section 385 of this title, to ascertain whether any violations of this subchapter have occurred.

§§ 388-390a. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

§ 387. Enforcement by Attorney General; employee misclassification. Section 387 repealed effective July 1, 2026.

1. Following the referral of a complaint by the Commissioner of Labor pursuant to the provisions of section 3 of this title, the Attorney General may investigate a complaint that an employer has committed a willful, substantial, or systemic violation of this subchapter by misclassifying an employee as an independent contractor and may enforce the provisions of this subchapter by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance, and conducting civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458 -2461 as though the misclassification of an employee is an unfair act in commerce. Any employer complained against shall have the same rights and remedies as specified in 9 V.S.A. §§ 2458 -2461. The Superior Court may impose the same civil penalties and investigation costs and order other relief to the State of Vermont or an aggrieved employee for the misclassification of an employee and any related violations of the provisions of this chapter as they are authorized to impose or order under the provisions of 9 V.S.A. §§ 2458 and 2461 in an unfair act in commerce. In addition, the Superior Court may order restitution of wages or other benefits on behalf of an employee and may order reinstatement and other appropriate relief on behalf of an employee.
2. 1. The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title. (b) (1)  The Attorney General shall share information and coordinate investigatory and enforcement resources with the Departments of Financial Regulation, of Labor, and of Taxes pursuant to the provisions of section 3 of this title.
   2. Upon receiving notice that the Attorney General has determined that an employing unit has committed a violation of this subchapter by misclassifying an employee as an independent contractor, the Commissioners of Financial Regulation and of Taxes shall review whether the employer is in compliance with the insurance or tax laws that are under their jurisdiction.

      Added 2019, No. 85 (Adj. Sess.), § 6, eff. Feb. 20, 2020; repealed on July 1, 2026 by 2019, No. 85 (Adj. Sess.), § 11(b).

§ 390. Repealed. 2001, No. 47, § 8.

§ 390a. Repealed. 2001, No. 47, § 3.

§ 391. Modification of wage orders.

The Commissioner with the approval of the Governor may from time to time propose modifications of or additions to any regulations included in any minimum wage order which the Commissioner deems appropriate.

Amended 2001, No. 47 , § 4.

§ 392. Court proceedings.

If any employer covered by a wage order has failed to comply with the wage order within 14 days after receiving notification of the violation, the Commissioner shall take court action to enforce the order.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2001, No. 47 , § 5; 2017, No. 11 , § 51.

§ 393. Employers' records.

Every employer, subject to the provisions of this subchapter or of any regulation or order issued thereunder, shall keep a true and accurate record of the hours worked by each employee and of the wages paid to him or her and shall furnish to the Commissioner upon demand a sworn statement of the same. Such records shall be open to inspection by the Commissioner, his or her deputy, or any authorized agent of the Department at any reasonable time. Every employer subject to the provisions of this subchapter or of any regulation or order issued under the provisions thereof shall keep a copy of them posted in a conspicuous place in the area where employees are employed. The Commissioner shall furnish copies of such orders and regulations to employers without charge.

§ 394. Penalties.

1. Any employer, subject to this subchapter or any regulations or orders issued thereunder, or any of the employer's agents or the officer or agent of any corporation who pays or permits to be paid or agrees to pay to any employee engaged in any industry or occupation less than the applicable rate to which the employee is entitled under this subchapter, shall be fined not more than $100.00 for each day the employee is paid less than the rate required under this subchapter.
2. Any employer or any of the employer's agents or the officer or agent of any corporation who fails to keep the records required under this subchapter or refuses to permit the Commissioner to enter the place of business or who fails to furnish the records to the Commissioner upon demand shall be fined not more than $100.00.

   Amended 2001, No. 47 , § 6.

§ 395. Civil actions.

If any employee is paid by an employer less than the applicable wage rate to which the employee is entitled under this subchapter, the employee shall recover, in a civil action, twice the amount of the minimum wage less any amount actually paid by the employer, together with costs and reasonable attorney's fees, and any agreement between an employer and an employee to work for less than the wage rates is no defense to the action.

Amended 2001, No. 47 , § 7.

§ 396. Appeals from Commissioner's decisions.

1. Appeals to Superior Court wherein a civil action between the parties would be triable.  Any person aggrieved by any decision of the Commissioner may appeal to the Superior Court.
2. Procedure.  The court shall direct the record in the matter appealed from to be laid before it, hear the evidence, and make such order approving in whole or in part or setting aside in whole or in part the decision appealed from as justice may require, and may refer any matter or issue arising in the proceedings to the Commissioner for further consideration. However, in no case shall such an appeal operate as a supersedeas or stay unless the Commissioner or the court to which such appeal is taken shall so order.
3. Certifying record.  An order of court to send up the record may be complied with by filing either the original papers or duly certified copies thereof, or of such portions thereof as the order may specify, together with a certified statement of such other facts as show the grounds of the action appealed from.
4. Hearing.  The court may take evidence or may appoint a referee to take such evidence as it may direct and to report the same with findings of fact.
5. Costs.  In any proceedings under this subchapter, the court may make such award of costs as may seem equitable and just.
6. Appeal, Supreme Court.  Appeal from the decision of the Superior Court may be had to the Supreme Court.

   Amended 1971, No. 185 (Adj. Sess.), § 193, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3; 1997, No. 161 (Adj. Sess.), § 17, eff. Jan. 1, 1998.

§ 397. Retaliation prohibited.

1. An employer shall not discharge or in any other manner retaliate against an employee because:
   1. the employee lodged a complaint of a violation of this subchapter;
   2. the employee has cooperated with the Commissioner in an investigation of a violation of this subchapter; or
   3. the employer believes that the employee may lodge a complaint or cooperate in an investigation of a violation of this subchapter.
2. Any person aggrieved by a violation of this section may bring an action in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.

   Added 2013, No. 15 , § 9.

§ 411. Definitions.

As used in this subchapter:

1. "Affected employees" means employees who may be expected to experience an employment loss as a consequence of a proposed or actual business closing or mass layoff by their employer.
2. "Business closing" means:
   1. the permanent shutdown of a facility;
   2. the permanent cessation of operations at one or more worksites in the State that results in the layoff of 50 or more employees over a 90-day period; or
   3. the cessation of work or operations not scheduled to resume within 90 days that affects 50 or more employees.
3. "Commissioner" means the Commissioner of Labor.
4. "Department" means the Department of Labor.
5. "Employer" means any person that employs:
   1. 50 or more full-time employees;
   2. 50 or more part-time employees who work at least 1,040 hours per employee per year; or
   3. a combination of 50 or more:
      1. full-time employees; and
      2. part-time employees who work at least 1,040 hours per employee per year.
6. "Employment loss" means the termination of employment that is the direct result of a business closing or mass layoff. An employee will not be considered to have suffered an employment loss if the employee is offered a transfer to a different site of employment within 35 miles; or if prior to the layoff notice to the employee, the employee voluntarily separates or retires or was separated by the employer for unsatisfactory performance or misconduct.
7. "Mass layoff" means a permanent employment loss of at least 50 employees at one or more worksites in Vermont during any 90-day period. In determining whether a mass layoff has occurred or will occur, employment losses for two or more groups of employees, each of which is below this threshold but which in the aggregate exceed this threshold and which occur within any 90-day period shall be considered to be a mass layoff unless the employer demonstrates that the employment losses are the result of separate and distinct actions and causes.
8. "Representative" means an exclusive bargaining agent as legally recognized under State or federal labor laws.

   Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

§ 412. Education and outreach.

The Department and the Agency of Commerce and Community Development shall prepare information and materials for the purpose of informing and educating Vermont employers with regard to programs and resources that are available to assist with economic and workforce retention initiatives in order to avoid business closings and mass layoffs. The Department and the Agency of Commerce and Community Development shall also inform Vermont employers of the employers' obligations that will be required for proper notice under the provisions of this subchapter.

Added 2013, No. 125 (Adj. Sess.), § 2, eff. May 10, 2014.

§ 413. Notice and wage payment obligations.

1. An employer who will engage in a closing or mass layoff shall provide notice to the Secretary of Commerce and Community Development and the Commissioner in accordance with this section to enable the State to present information on potential support for the employer and separated employees.
2. Notwithstanding subsection (a) of this section, an employer who will engage in a closing or mass layoff shall provide notice to the Secretary of Commerce and Community Development and the Commissioner 45 days prior to the effective date of the closing or layoffs that reach the thresholds defined in section 411 of this subchapter, and shall provide 30 days' notice to the local chief elected official or administrative officer of the municipality, affected employees, and bargaining agent, if any.
3. The employer shall send to the Commissioner and the Secretary the approximate number and job titles of affected employees, the anticipated date of the employment loss, and the affected worksites within the time allotted for notice to the Commissioner and Secretary under subsection 413(b) or 414(b) of this subchapter. Concurrent with the notification to the affected employees, in accordance with subsection 413(b) of this subchapter, the employer shall send to the Commissioner in writing the actual number of layoffs, job titles, date of layoff, and other information as the Commissioner deems necessary for the purposes of unemployment insurance benefit processing and for accessing federal and State resources to mitigate adverse employment impacts affecting employers, employees, and communities.
4. In the case of a sale of part or all of an employer's business where mass layoffs will occur, the seller and the purchaser are still required to comply with the notice requirements under subsection (b) of this section.
5. Nothing in this subchapter shall abridge, abrogate, or restrict the right of the State to require an employer that is receiving State economic development funds or incentives from being required to provide additional or earlier notice as a condition for the receipt of such funds or incentives.
6. An employer is required to pay all unpaid wage and compensation owed to any laid-off worker, as required under this title.
7. This section shall not apply to a nursing home in situations where Rules 2.8 and 3.14 of the Vermont Licensing and Operating Rules for Nursing Homes apply or where the CMS Requirements for Long-Term Care Facilities apply, pursuant to 42 C.F.R. §§ 483.12 and 483.75.

   Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

§ 414. Exceptions.

1. In the case of a business closing or mass layoff, an employer is not required to comply with the notice requirement in subsection 413 of this subchapter and may delay notification to the Department if:
   1. the business closing or mass layoff results from a strike or a lockout;
   2. the employer is actively attempting to secure capital or investments in order to avoid closing or mass layoffs; and the capital or investments sought, if obtained, would have enabled the employer to avoid or postpone the business closing or mass layoff, and the employer reasonably and in good faith believed that giving the notice would have precluded the employer from securing the needed capital or investment;
   3. the business closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time the 45-day notice would have been required;
   4. the business closing or mass layoff is due to a disaster beyond the control of the employer; or
   5. 1. the business closing or the mass layoff is the result of the conclusion of seasonal employment or the completion of a particular project or undertaking; or (5) (A) the business closing or the mass layoff is the result of the conclusion of seasonal employment or the completion of a particular project or undertaking; or
      2. the affected employees were hired with the understanding that their employment was limited to the duration of the season, facility, project, or undertaking.
2. An employer that is unable to provide the notice otherwise required by this subchapter as a result of circumstances described in subsection (a) of this section shall provide as much notice as is practicable and at that time shall provide a brief statement to the Commissioner regarding the basis for failure to meet the notification period. In such situations, the mailing of the notice by certified mail or any other method approved by the Commissioner shall be considered acceptable in the fulfillment of the employer's obligation to give notice to each affected employee under this subchapter. At the time of notice to the Commissioner, the employer shall provide the required information under subdivisions 413(c) of this subchapter.

   Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

§ 415. Violations.

1. An employer who violates subsection 413(b) or 414(b) of this subchapter is liable to each employee who lost his or her employment for:
   1. one day of severance pay for each day after the first day in the 45-day notice period required in subsection 413(b) of this subchapter, up to a maximum of ten days' severance pay; and
   2. the continuation, not to exceed one month after an employment loss, of existing medical or dental coverage under an employment benefit plan, if any, necessary to cover any delay in an employee's eligibility for obtaining alternative coverage resulting directly from the employer's violation of notice requirements.
2. The amount of an employer's liability under subsection (a) of this section shall be reduced by the following:
   1. any voluntary and unconditional payments made by the employer to the employee that were not required to satisfy any legal obligation;
   2. any payments by the employer to a third party or trustee, such as premiums for health benefits or payments to a defined contribution pension plan, on behalf of and attributable to the employee for the period of the violation; and
   3. any liability paid by the employer under any applicable federal law governing notification of mass layoffs, business closings, or relocations.
3. If an employer proves to the satisfaction of the Commissioner that the act or omission that violated this subchapter was in good faith, the Commissioner may reduce the amount of liability provided for in this section. In determining the amount of such a reduction, the Commissioner shall consider any efforts by the employer to mitigate the violation.
4. If, after an administrative hearing, the Commissioner determines that an employer has violated any of the requirements of this subchapter, the Commissioner shall issue an order including any penalties assessed by the Commissioner under this section and section 417 of this subchapter. The employer may appeal a decision of the Commissioner to the Superior Court within 30 days of the date of the Commissioner's order.

   Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

§ 416. Powers of the Commissioner.

1. The Commissioner may adopt rules as necessary, pursuant to 3 V.S.A. chapter 25, to carry out this subchapter. The rules shall include provisions that allow the parties access to administrative hearings for any actions of the Department under this subchapter.
2. In any investigation or proceeding under this subchapter, the Commissioner has, in addition to all other powers granted by law, the authority to subpoena and examine information of an employer necessary to determine whether a violation of this subchapter has occurred, including to determine the validity of any defense.
3. Information obtained through administration of this subchapter by the Commissioner and the Secretary of Commerce and Community Development shall be confidential, except that the number of layoffs, the types of jobs affected, and work locations affected shall cease to be confidential after local government and the affected employees have been notified. The Department may provide the information collected pursuant to subsection 413(c) of this subchapter to the U.S. Department of Labor and any other governmental entities for the purposes of securing benefits for the affected employees.
4. Neither the Commissioner nor any court shall have the authority to enjoin a business closing, relocation, or mass layoff under this subchapter.

   Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

§ 417. Administrative penalty.

An employer who fails to give notice as required by subsection 413(b) or 414(b) of this subchapter shall be subject to an administrative penalty of $500.00 for each day that the employer was deficient in the notice to the Department. The Commissioner may waive the administrative penalty if the employer:

1. demonstrates good cause under subsection 414(b) of this subchapter;
2. pays to all affected employees the amounts for which the employer is liable under section 415 of this title within 30 days from the date the employer enacts the business closing or mass layoff; and
3. pays to all affected employees any unpaid wage and compensation owed to any laid-off worker, as required under this title.

   Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015.

§ 418. Other rights.

The rights and remedies provided to employees by this subchapter do not infringe upon or alter any other contractual or statutory rights and remedies of the employees. Nothing in this subchapter is intended to alter or diminish or replace any federal or State regulatory mandates for a shutdown or closure of a regulated business or entity.

Added 2013, No. 125 (Adj. Sess.), § 2, eff. Jan. 15, 2015; amended 2017, No. 74 , § 34.

§ 430. Policy; definitions; rules.

1. It is the policy of Vermont that children shall be protected from employment in harmful and dangerous occupations. Toward this end, Vermont law should reflect federal protections regarding the employment of children, but should continue to provide additional protection for children in Vermont where particular circumstances warrant greater protection for children.
2. For the purposes of this subchapter:
   1. "Child" or "children" means an individual under the age of 18 years.
   2. "Commissioner" means the Commissioner of Labor or designee.
   3. "Employee" means any individual suffered or permitted to work by an employer.
   4. "Illegal child employment" means the employment of any child under the age of 18 in any work or occupation specifically prohibited by State or federal law. "Illegal child employment" does not include work performed by students as part of an educational program, provided this subchapter or federal law specifically permits this work.
3. The Commissioner shall adopt rules to carry out the purpose and intent of this subchapter, provided the rules are consistent with federal child labor laws and rules. However, the Commissioner shall not be required to adopt or modify rules in order to conform with a change in federal child labor laws or regulations which weakens or eliminates an existing child labor protection policy.

   Added 2001, No. 68 , § 1; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

§ 431. Age limit; certificate as to eligibility of child under 16.

Except as provided in this subchapter, a child under 16 years of age shall not be employed in any gainful occupation unless the child deposits with the employer a certificate from the Commissioner that states that the child is eligible for employment in accordance with the provisions of this subchapter. However, this requirement shall not apply to any child employed during vacations or before or after sessions of school when the employment is not otherwise prohibited by this subchapter.

Amended 1999, No. 69 (Adj. Sess.), § 1; 2001, No. 68 , § 2.

§ 432. Restrictions.

1. The Commissioner shall not issue a certificate for a child under 16 pursuant to section 431 of this title until the Commissioner has received, examined, approved, and filed the following papers:
   1. The school record of the child properly filled out and signed by the person in charge of the school which the child last attended, giving the child's age, address, standing in studies, rating in conduct, and attendance in days during the school year of the last full year of attendance.
   2. Evidence of the age of the child as follows:
      1. The birth certificate of the child, or a copy certified by the town clerk in a town where the certificate is a part of the public records.
      2. If the certificate or certified copy cannot be procured, a duly attested transcript of the certificate of birth or baptism or other religious record, shall be conclusive evidence of the age of the child.
      3. In case no documentary proof of age is available, the Commissioner may accept an affidavit from the parent, guardian, or custodian of the child to establish the age of the child.
   3. A certificate from a physician resident in and licensed to practice in this State showing that after a thorough examination the child is found to be physically fit to be employed in the proposed occupation. When a certificate is requested for the employment of a child under 16 as an actor or performer in motion pictures, theatrical productions, radio, or television, this provision may be waived at the discretion of the Commissioner.
   4. Before a certificate approving the employment of a child as an actor or performer in motion pictures, theatrical productions, radio, or television is issued by the Commissioner, the Secretary of Education must approve the substance and conditions of the educational program being provided to the child during this employment which in no case shall be more than 90 days during the school year.
2. The Commissioner shall refuse a certificate to a child under 16 years of age unless the child has completed the elementary school course, or received an equivalent education, or has been excused from further school attendance under the provisions of 16 V.S.A. § 1123 .

   Amended 1987, No. 4 , § 1, eff. March 10, 1987; 2001, No. 68 , § 3; 2013, No. 92 (Adj. Sess.), § 262, eff. Feb. 14, 2014.

§ 433. Repealed. 2001, No. 68, § 16(1).

§ 434. Employment of children under 16.

A child under 16 years of age shall not be employed more than eight hours in any day, or more than six days in any week, or earlier than seven o'clock in the morning, or after seven o'clock at night, except from June 1 through Labor Day when a child may be permitted to work until nine o'clock at night. A child under 16 years of age shall not be employed more than three hours on any day that school is in session, and not more than a total of 18 hours during any week that school is in session. However, in the case of a child employed as an actor or performer in motion pictures, theatrical productions, radio, or television, or employed as a baseball bat girl or bat boy, the child may be employed until midnight or after midnight if a parent or guardian and the Commissioner of Labor have consented in writing. The Department shall adopt rules regarding the permissible duties of a baseball bat girl or bat boy. The provisions of this section shall not apply to employment as a newspaper carrier or work connected with agriculture or domestic service.

Added 1987, No. 4 , § 2, eff. March 10, 1987; amended 1987, No. 144 (Adj. Sess.), eff. April 13, 1988; 1999, No. 69 (Adj. Sess.), § 2; 2001, No. 68 , § 4; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

§ 435. Examination and report.

When so ordered by the Secretary of Education, the superintendent of schools for the school district where the child under 16 years of age resides shall examine the child for the purpose of determining the child's eligibility for employment in accordance with the provisions of section 432 of this title and shall, upon the completion of the examination, make a written report to the Secretary of Education who shall transmit a copy of the report to the Commissioner.

Amended 2001, No. 68 , § 5; 2013, No. 92 (Adj. Sess.), § 263, eff. Feb. 14, 2014; 2017, No. 74 , § 35.

§ 436. Employment of children under 14 years.

A child under 14 years of age shall not be employed or permitted to work in any gainful occupation unless the occupation has been approved by the Commissioner, by rule, to be appropriate for a child under the age of 14, and the employment occurs during vacation and before and after school. The provisions of this section shall not apply to:

1. Employment by a parent or a person standing in place of a parent employing his or her own child or a child in his or her custody in an occupation other than manufacturing, mining, or an occupation found by the U.S. Secretary of Labor to be particularly hazardous or detrimental to their health or well-being.
2. A newspaper carrier.
3. An actor or performer in motion pictures, theatrical productions, radio, and television.

   Amended 1987, No. 4 , § 3, eff. March 10, 1987; 2001, No. 68 , § 6; 2013, No. 96 (Adj. Sess.), § 127.

§ 437. Employment of children; special restrictions; hours for children under 16 years.

1. Except as provided in section 438 of this title, a child shall not be employed or permitted to work at or on any occupations, employment, operations, or machines determined to be hazardous, by rule, by the U.S. Secretary of Labor or the Commissioner.
2. A child under 16 years of age shall not be employed more than eight hours in any one day or more than 40 hours in any one week.

   Amended 2001, No. 68 , § 7; 2013, No. 96 (Adj. Sess.), § 128.

§ 438. Exceptions.

A child over 14 years of age, who is enrolled in a career technical education program or course duly approved by the State Board of Education, may be legally employed in any of the occupations or operations named in section 437 of this title or other occupations or operations that may be in the estimation of the State Board of Education a necessary or essential part of the student's career technical education, provided that the plant, work places, machinery, and other appliances and equipment used for instruction have been inspected for safe conditions and approved by the Commissioner.

Amended 1991, No. 204 (Adj. Sess.), § 9; 2001, No. 68 , § 8; 2013, No. 92 (Adj. Sess.), § 302, eff. Feb. 14, 2014.

§ 439. Repealed. 1969, No. 218 (Adj. Sess.), § 4, eff. March 27, 1970.

§ 440. Repealed. 2001, No. 68, § 16(2).

§ 441. Repealed. 2001, No. 68, § 16(5).

§ 442. Posting notices of hours of labor.

An employer shall post in a conspicuous place in the place in which a child is employed a printed notice describing permitted and prohibited operations, occupations, and machines at which a child may be employed, stating the number of hours' work permitted on each day of the week, the hours of commencing and stopping work, and the hours when the time allowed for meals begins and ends. The printed forms of this notice shall be provided by the Commissioner.

Amended 2001, No. 68 , § 10.

§ 443. Repealed. 2001, No. 68, § 16(3).

§ 444. Repealed. 1969, No. 218 (Adj. Sess.), § 4, eff. March 27, 1970.

§ 444a. Employment of aliens.

1. For the purposes of this section:
   1. "Alien" means any person not a citizen of the United States.
   2. "Employer" means any person, including any partnership, firm, corporation, or association, or any agent thereof, who engages or utilizes the personal services of one or more individuals for a salary or wage.
   3. "Illegal alien" means any person not a citizen of the United States who has entered the United States in violation of the Federal Immigration and Naturalization Act or regulations issued thereunder, who has legally entered but without the right to be employed in the country, or who has legally entered subject to a time limit but has remained illegally after expiration of such time limit.
2. No employer or agent for an employer shall knowingly recruit, solicit, or refer for employment, or employ, an illegal alien.
3. No employer shall knowingly employ any alien unless the employer determines that the alien possesses the required certificate under the Federal Immigration and Naturalization Act or regulations issued thereunder, or has authorization from the immigration services.
4. A person convicted of violating this section shall be fined not less than $100.00 or more than $300.00 for conviction of a first offense.  For any subsequent offense, a person convicted of violating this section shall be fined not less than $300.00, nor more than $750.00.

   Added 1977, No. 99 .

§ 445. Repealed. 1969, No. 218 (Adj. Sess.), § 4, eff. March 27, 1970.

§ 446. Duties of Commissioner as to employment of children.

The Commissioner may inquire of the owner or superintendent of any place or establishment as to the employment of children, may request to see the certificate filed with the owner or superintendent, and shall ensure that the provisions of this subchapter have been complied with.

Amended 2001, No. 68 , § 11.

§ 447. Repealed. 2001, No. 68, § 16(4).

§ 448. Duty of person having control of child.

A person having control of a child shall not allow the child to be employed contrary to a provision of this subchapter.

Amended 2001, No. 68 , § 12.

§ 449. General penalty.

A person who violates a provision of this subchapter for which another penalty is not provided shall be fined not more than $5,000.00 for each offense and, upon a subsequent conviction, may be fined or imprisoned for not more than six months, or both.

Amended 1981, No. 223 (Adj. Sess.), § 23; 2001, No. 68 , § 13.

§ 450. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

§ 451. Complaints.

Truant officers and all informing officers are authorized to make complaints for violations or offenses arising under this subchapter. A complaint for a violation of section 448 of this title shall be sufficient if it states that the person having control of a child has allowed such child to be employed contrary to law.

§ 452. Suspension of subchapter.

The Commissioner, with the approval of the Governor, may suspend part or all of the provisions of this subchapter for a period not to exceed two months in any one year in the case of a manufacturing establishment or business, the materials and products of which are perishable and require immediate labor to prevent decay or damage.

Amended 2001, No. 68 , § 14.

§ 453. Sale of goods made in violation of subchapter.

No person, partnership, corporation, or association shall knowingly sell, offer, or expose for sale, take orders for the future delivery of, or possess with intent to sell any article, product, or compound in the production, manufacture, or distribution of which children have been employed in violation of the provisions of this subchapter, or in a manner or under conditions that would be in violation of these provisions if the employment had occurred in this State. Any complaint alleging a violation of this section shall be filed with the Commissioner, who shall investigate, and if the Commissioner determines there is sufficient evidence to substantiate the allegations, shall transmit the complaint to the Attorney General or to the State's Attorney of the county in which the violation is alleged to have occurred. A person who violates a provision of this section shall be fined not more than $10,000.00.

Amended 2001, No. 68 , § 15.

§ 470. Purpose.

1. Strong families are the foundation for a productive and competitive state. There are a growing number of single-parent families where the sole parent works and two-parent families where both parents work. Most people who work while raising families do so out of economic necessity.
2. Leave from employment for the birth or adoption of a child or to care for a seriously ill family member addresses one of the important needs of changing family structures. The support of families is a principle recognized and valued by the State of Vermont. When employees have security about their employment and the well-being of their children, parents, and other family members, businesses benefit economically from increased worker productivity and stability.
3. The provisions of this subchapter are enacted in recognition of the fact that both employers and employees benefit from the establishment of parental and family leave as a condition of employment.

   Added 1991, No. 260 (Adj. Sess.), § 2.

§ 471. Definitions.

As used in this subchapter:

1. "Employer" means an individual, organization, or governmental body, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company doing business in or operating within this State which for the purposes of parental leave employs 10 or more individuals who are employed for an average of at least 30 hours per week during a year and for the purposes of family leave employs 15 or more individuals for an average of at least 30 hours per week during a year.
2. "Employee" means a person who, in consideration of direct or indirect gain or profit, has been continuously employed by the same employer for a period of one year for an average of at least 30 hours per week.
3. "Family leave" means a leave of absence from employment by an employee who works for an employer which employs 15 or more individuals who are employed for an average of at least 30 hours per week during the year for one of the following reasons:
   1. the serious illness of the employee; or
   2. the serious illness of the employee's child, stepchild or ward who lives with the employee, foster child, parent, spouse, or parent of the employee's spouse.
4. "Parental leave" means a leave of absence from employment by an employee who works for an employer which employs 10 or more individuals who are employed for an average of at least 30 hours per week during the year for one of the following reasons:
   1. the birth of the employee's child; or
   2. the initial placement of a child 16 years of age or younger with the employee for the purpose of adoption.
5. "Serious illness" means an accident, disease, or physical or mental condition that:
   1. poses imminent danger of death;
   2. requires inpatient care in a hospital; or
   3. requires continuing in-home care under the direction of a physician.

      Added 1989, No. 83 , § 1; amended 1989, No. 150 (Adj. Sess.), § 2; 1991, No. 260 (Adj. Sess.), § 3.

§ 472. Leave.

1. During any 12-month period, an employee shall be entitled to take unpaid leave for a period not to exceed 12 weeks:
   1. for parental leave, during the employee's pregnancy and following the birth of an employee's child or within a year following the initial placement of a child 16 years of age or younger with the employee for the purpose of adoption.
   2. for family leave, for the serious illness of the employee or the employee's child, stepchild or ward of the employee who lives with the employee, foster child, parent, spouse, or parent of the employee's spouse.
2. During the leave, at the employee's option, the employee may use accrued sick leave or vacation leave or any other accrued paid leave, not to exceed six weeks. Utilization of accrued paid leave shall not extend the leave provided herein.
3. The employer shall continue employment benefits for the duration of the leave at the level and under the conditions coverage would be provided if the employee continued in employment continuously for the duration of the leave. The employer may require that the employee contribute to the cost of the benefits during the leave at the existing rate of employee contribution.
4. The employer shall post and maintain in a conspicuous place in and about each of his or her places of business printed notices of the provisions of this subchapter on forms provided by the Commissioner of Labor.
5. An employee shall give reasonable written notice of intent to take leave under this subchapter. Notice shall include the date the leave is expected to commence and the estimated duration of the leave. In the case of the adoption or birth of a child, an employer shall not require that notice be given more than six weeks prior to the anticipated commencement of the leave. In the case of serious illness of the employee or a member of the employee's family, an employer may require certification from a physician to verify the condition and the amount and necessity for the leave requested. An employee may return from leave earlier than estimated upon approval of the employer. An employee shall provide reasonable notice to the employer of his or her need to extend leave to the extent provided by this chapter.
6. Upon return from leave taken under this subchapter, an employee shall be offered the same or comparable job at the same level of compensation, employment benefits, seniority, or any other term or condition of the employment existing on the day leave began. This subchapter shall not apply if, prior to requesting leave, the employee had been given notice or had given notice that the employment would terminate. This subsection shall not apply if the employer can demonstrate by clear and convincing evidence that:
   1. during the period of leave the employee's job would have been terminated or the employee laid off for reasons unrelated to the leave or the condition for which the leave was granted; or
   2. the employee performed unique services and hiring a permanent replacement during the leave, after giving reasonable notice to the employee of intent to do so, was the only alternative available to the employer to prevent substantial and grievous economic injury to the employer's operation.
7. An employer may adopt a leave policy more generous than the leave policy provided by this subchapter. Nothing in this subchapter shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or any employment benefit program or plan which provides greater leave rights than the rights provided by this subchapter. A collective bargaining agreement or employment benefit program or plan may not diminish rights provided by this subchapter. Notwithstanding the provisions of this subchapter, an employee may, at the time a need for parental or family leave arises, waive some or all the rights under this subchapter provided the waiver is informed and voluntary and any changes in conditions of employment related to any waiver shall be mutually agreed upon between employer and employee.
8. Except for serious illness of the employee, an employee who does not return to employment with the employer who provided the leave shall return to the employer the value of any compensation paid to or on behalf of the employee during the leave, except payments for accrued sick leave or vacation leave.

   Added 1989, No. 83 , § 1; amended 1991, No. 260 (Adj. Sess.), § 4; 1997, No. 41 , § 1; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

§ 472a. Short-term family leave.

1. In addition to the leave provided in section 472 of this title, an employee shall be entitled to take unpaid leave not to exceed four hours in any 30-day period and not to exceed 24 hours in any 12-month period. An employer may require that leave be taken in a minimum of two-hour segments and may be taken for any of the following purposes:
   1. To participate in preschool or school activities directly related to the academic educational advancement of the employee's child, stepchild, foster child, or ward who lives with the employee, such as a parent-teacher conference.
   2. To attend or to accompany the employee's child, stepchild, foster child, or ward who lives with the employee or the employee's parent, spouse, or parent-in-law to routine medical or dental appointments.
   3. To accompany the employee's parent, spouse, or parent-in-law to other appointments for professional services related to their care and well-being.
   4. To respond to a medical emergency involving the employee's child, stepchild, foster child, or ward who lives with the employee or the employee's parent, spouse, or parent-in-law.
2. An employee shall make a reasonable attempt to schedule appointments for which leave may be taken under this section outside of regular work hours. In order to take leave under this section, an employee shall provide the employer with the earliest possible notice, but in no case later than seven days, before leave is to be taken except in the case of an emergency. In this subsection, "emergency" means circumstances where the required seven day notice could have a significant adverse impact on the family member of the employee.
3. At the employee's discretion, the employee may use accrued paid leave, including vacation and personal leave.

   Added 1997, No. 41 , § 2.

§ 472b. Town meeting leave; employees; students.

1. Subject to the essential operation of a business or entity of State or local government, which shall prevail in any instance of conflict, an employee shall have the right to take unpaid leave from employment under this section or subsection 472(b) of this title for the purpose of attending his or her annual town meeting, provided the employee notifies the employer at least seven days prior to the date of the town meeting.
2. A student of voting age shall have the right to attend his or her annual town meeting, and the school shall not penalize or report the student as a truant for exercising the right provided by this section.
3. The requirement of subsection (b) shall not apply to a student who is in State custody in a secure facility.
4. The requirement of subsection (b) shall not create an obligation for any parent, guardian, or custodian to take any affirmative action to enable the student to attend an annual town meeting.

   Added 2007, No. 124 (Adj. Sess.), § 1; amended 2013, No. 31 , § 5.

§ 472c. Leave; crime victims.

1. As used in this section:
   1. "Employer" means an individual, organization, governmental body, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company doing business in or operating within this State.
   2. "Employee" means a person who is a crime victim as defined in section 495d of this chapter and, in consideration of direct or indirect gain or profit, has been continuously employed by the same employer for a period of six months for an average of at least 20 hours per week.
2. In addition to the leave provided in section 472 of this title, an employee shall be entitled to take unpaid leave from employment for the purpose of attending a deposition or court proceeding related to:
   1. a criminal proceeding, when the employee is a victim as defined in 13 V.S.A. § 5301 and the employee has a right or obligation to appear at the proceeding;
   2. a relief from abuse hearing pursuant to 15 V.S.A. § 1103 , when the employee seeks the order as plaintiff;
   3. a hearing concerning an order against stalking or sexual assault pursuant to 12 V.S.A. § 5133 , when the employee seeks the order as plaintiff; or
   4. a relief from abuse, neglect, or exploitation hearing pursuant to 33 V.S.A. chapter 69, when the employee is the plaintiff.
3. During the leave, at the employee's option, the employee may use accrued sick leave, vacation leave, or any other accrued paid leave. Use of accrued paid leave shall not extend the leave provided pursuant to this section.
4. The employer shall continue employment benefits for the duration of the leave at the level and under the conditions coverage would be provided if the employee continued in employment continuously for the duration of the leave. The employer may require that the employee contribute to the cost of benefits during the leave at the existing rate of employee contribution.
5. The employer shall post and maintain in a conspicuous place in and about each of its places of business printed notices of the provisions of this section on forms provided by the Commissioner of Labor.
6. 1. Upon return from leave taken under this section, an employee shall be offered the same or comparable job at the same level of compensation, employment benefits, seniority, or any other term or condition of the employment existing on the day leave began. (f) (1)  Upon return from leave taken under this section, an employee shall be offered the same or comparable job at the same level of compensation, employment benefits, seniority, or any other term or condition of the employment existing on the day leave began.
   2. This subsection shall not apply if, prior to requesting leave, the employee had been given notice or had given notice that the employment would terminate.
   3. This subsection shall not apply if the employer can demonstrate by clear and convincing evidence that during the period of leave the employee's job would have been terminated or the employee would have been laid off for reasons unrelated to the leave or the condition for which the leave was granted.
7. An employer may adopt a leave policy more generous than the leave provided by this section. Nothing in this section shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater leave rights than the rights provided by this section. A collective bargaining agreement or employment benefit program or plan shall not diminish rights provided by this section. Notwithstanding the provisions of this section, an employee may, at the time a need for leave arises, waive some or all of the rights under this section, provided that the waiver is informed and voluntary and that any changes in conditions of employment related to the waiver shall be mutually agreed upon between the employer and the employee.
8. Subsection (b) of this section shall not apply to an employer that provides goods or services to the general public if the employee's absence would require the employer to suspend all business operations at a location that is open to the general public.

   Added 2017, No. 184 (Adj. Sess.), § 3.

§ 473. Retaliation prohibited.

An employer shall not discharge or in any other manner retaliate against an employee who exercises or attempts to exercise his or her rights under this subchapter. The provisions against retaliation in subdivision 495(a)(8) of this title shall apply to this subchapter.

Added 1989, No. 83 , § 1; amended 2013, No. 31 , § 7; 2017, No. 74 , § 36.

§ 474. Penalties and enforcement.

1. The penalty and enforcement provisions of section 495b of this title shall apply to this subchapter.
2. An employer may bring a civil action to recover compensation paid to the employee during leave, except payments made for accrued sick leave or vacation leave, and court costs to enforce the provisions of subsection 472(h) of this title.

   Added 1989, No. 83 , § 1; amended 2013, No. 31 , § 8; 2017, No. 74 , § 37.

§ 481. Definitions.

As used in this subchapter:

1. "Employer" means any individual, organization, or governmental body, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company doing business in or operating within this State.
2. "Combined time off" means a policy wherein the employer provides time off from work for vacation, sickness, or personal reasons, and the employee has the option to use all of the leave for whatever purpose he or she chooses.
3. "Commissioner" means the Commissioner of Labor.
4. "Earned sick time" means discretionary time earned and accrued under the provisions of this subchapter and used by an employee to take time off from work for the purposes listed in subdivisions 483(a)(1)-(5) of this subchapter.
5. "Employee" means a person who, in consideration of direct or indirect gain or profit, is employed by an employer for an average of no less than 18 hours per week during a year. However, the term "employee" shall not include:
   1. An individual who is employed by the federal government.
   2. An individual who is employed by an employer:
      1. for 20 weeks or fewer in a 12-month period; and
      2. in a job scheduled to last 20 weeks or fewer.
   3. An individual that is employed by the State and is exempt or excluded from the State classified service pursuant to 3 V.S.A. § 311 , but not an individual that is employed by the State in a temporary capacity pursuant to 3 V.S.A. § 331 .
   4. An employee of a health care facility as defined in 18 V.S.A. § 9432(8) or a facility as defined in 33 V.S.A. § 7102(2) if the employee only works on a per diem or intermittent basis.
   5. An employee of a school district, supervisory district, or supervisory union as defined in 16 V.S.A. § 11 that:
      1. is employed pursuant to a school district or supervisory union policy on substitute educators as required by the Vermont Standards Board for Professional Educators Rule 5381;
      2. is under no obligation to work a regular schedule; and
      3. is not under contract or written agreement to provide at least one period of long-term substitute coverage which is defined as 30 or more consecutive school days in the same assignment.
   6. An individual who is under 18 years of age.
   7. An individual that is either:
      1. a sole proprietor or partner owner of an unincorporated business who is excluded from the provisions of chapter 9 of this title pursuant to subdivision 601(14)(F) of this title; or
      2. an executive officer, manager, or member of a corporation or a limited liability company for whom the Commissioner has approved an exclusion from the provisions of chapter 9 of this title pursuant to subdivision 601(14)(H) of this title.
   8. An individual that:
      1. works on a per diem or intermittent basis;
      2. works only when he or she indicates that he or she is available to work;
      3. is under no obligation to work for the employer offering the work; and
      4. has no expectation of continuing employment with the employer.
6. "Paid time off policy" means any policy under which the employer provides paid time off from work to the employee that includes a combination of one or more of the following:
   1. annual leave;
   2. combined time off;
   3. vacation leave;
   4. personal leave;
   5. sick leave; or
   6. any similar type of leave.

      Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 482. Earned sick time.

1. An employee shall accrue not less than one hour of earned sick time for every 52 hours worked.
2. An employer may require a waiting period for newly hired employees of up to one year. During this waiting period, an employee shall accrue earned sick time pursuant to this subchapter, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period.
3. An employer may:
   1. limit the amount of earned sick time accrued pursuant to this section to:
      1. from January 1, 2017 until December 31, 2018, a maximum of 24 hours in a 12-month period; and
      2. after December 31, 2018, a maximum of 40 hours in a 12-month period; or
   2. limit to 40 hours the number of hours in each workweek for which full-time employees not subject to the overtime provisions of the Federal Fair Labor Standards Act, 29 U.S.C. § 213(a) (1), may accrue earned sick time pursuant to this section.
4. 1. Earned sick time shall be compensated at a rate that is equal to the greater of either: (d) (1)  Earned sick time shall be compensated at a rate that is equal to the greater of either:
      1. the normal hourly wage rate of the employee; or
      2. the minimum wage rate for an employee pursuant to section 384 of this title.
   2. Group insurance benefits shall continue during an employee's use of earned sick time at the same level and conditions that coverage would be provided as for normal work hours. The employer may require that the employee contribute to the cost of the benefits during the use of earned sick time at the existing rate of employee contribution.
5. Except as otherwise provided by subsection 484(a) of this subchapter, an employer shall calculate the amount of earned sick time that an employee has accrued pursuant to this section:
   1. as it accrues during each pay period; or
   2. on a quarterly basis, provided that an employee may use earned sick time as he or she accrues it during each quarter.

      Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 483. Use of earned sick time.

1. An employee may use earned sick time accrued pursuant to section 482 of this subchapter for any of the following reasons:
   1. The employee is ill or injured.
   2. The employee obtains professional diagnostic, preventive, routine, or therapeutic health care.
   3. The employee cares for a sick or injured parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, including helping that individual obtain diagnostic, preventive, routine, or therapeutic health treatment, or accompanying the employee's parent, grandparent, spouse, or parent-in-law to an appointment related to his or her long-term care.
   4. The employee is arranging for social or legal services or obtaining medical care or counseling for the employee or for the employee's parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, who is a victim of domestic violence, sexual assault, or stalking or who is relocating as the result of domestic violence, sexual assault, or stalking. As used in this section, "domestic violence," "sexual assault," and "stalking" shall have the same meanings as in 15 V.S.A. § 1151 .
   5. The employee cares for a parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, because the school or business where that individual is normally located during the employee's workday is closed for public health or safety reasons.
2. If an employee's absence is shorter than a normal workday, the employee shall use earned sick time accrued pursuant to section 482 of this subchapter in the smallest time increments that the employer's payroll system uses to account for other absences or that the employer's paid time off policy permits. Nothing in this subsection shall be construed to require an employer to permit an employee to use earned sick time in increments that are shorter than one hour.
3. An employer may limit the amount of earned sick time accrued pursuant to section 482 of this subchapter that an employee may use to:
   1. from January 1, 2017 until December 31, 2018, no more than 24 hours in a 12-month period; and
   2. after December 31, 2018, no more than 40 hours in a 12-month period.
4. 1. Except as otherwise provided in subsection 484(a) of this subchapter, earned sick time that remains unused at the end of an annual period shall be carried over to the next annual period and the employee shall continue to accrue earned sick time as provided pursuant to section 482 of this subchapter. However, nothing in this subdivision shall be construed to permit an employee to use more earned sick time during an annual period than any limit on the use of earned sick time that is established by his or her employer pursuant to subsection (c) of this section. (d) (1)  Except as otherwise provided in subsection 484(a) of this subchapter, earned sick time that remains unused at the end of an annual period shall be carried over to the next annual period and the employee shall continue to accrue earned sick time as provided pursuant to section 482 of this subchapter. However, nothing in this subdivision shall be construed to permit an employee to use more earned sick time during an annual period than any limit on the use of earned sick time that is established by his or her employer pursuant to subsection (c) of this section.
   2. If, at an employer's discretion, an employer pays an employee for unused earned sick time accrued pursuant to section 482 of this subchapter at the end of an annual period, then the amount for which the employee was compensated does not carry over to the next annual period.
5. Upon separation from employment, an employee shall not be entitled to payment for unused earned sick time accrued pursuant to section 482 of this subchapter unless agreed upon by the employer.
6. 1. An employee who is discharged by his or her employer after he or she has completed a waiting period required pursuant to subsection 482(b) of this subchapter and is subsequently rehired by the same employer within 12 months after the discharge from employment shall begin to accrue and may use earned sick time without a waiting period. However, the employee shall not be entitled to retain any earned sick time that accrued before the time of his or her discharge unless agreed to by the employer. (f) (1)  An employee who is discharged by his or her employer after he or she has completed a waiting period required pursuant to subsection 482(b) of this subchapter and is subsequently rehired by the same employer within 12 months after the discharge from employment shall begin to accrue and may use earned sick time without a waiting period. However, the employee shall not be entitled to retain any earned sick time that accrued before the time of his or her discharge unless agreed to by the employer.
   2. An employee that voluntarily separates from employment after he or she has completed a waiting period required pursuant to subsection 482(b) of this subchapter and is subsequently rehired by the same employer within 12 months after the separation from employment shall not be entitled to accrue and use earned sick time without a waiting period unless agreed to by the employer.
7. An employer shall not require an employee to find a replacement for absences, including absences for professional diagnostic, preventive, routine, or therapeutic health care.
8. An employer may require an employee planning to take earned sick time accrued pursuant to section 482 of this subchapter to:
   1. make reasonable efforts to avoid scheduling routine or preventive health care during regular work hours; or
   2. notify the employer as soon as practicable of the intent to take earned sick time accrued pursuant to section 482 of this subchapter and the expected duration of the employee's absence.
9. 1. If an employee is absent from work for one of the reasons listed in subsection (a) of this section, the employee shall not be required to use earned sick time accrued pursuant to section 482 of this subchapter and the employer will not be required to pay for the time that the employee was absent if the employer and the employee mutually agree that either: (i) (1)  If an employee is absent from work for one of the reasons listed in subsection (a) of this section, the employee shall not be required to use earned sick time accrued pursuant to section 482 of this subchapter and the employer will not be required to pay for the time that the employee was absent if the employer and the employee mutually agree that either:
      1. the employee will work an equivalent number of hours as the number of hours for which the employee is absent during the same pay period; or
      2. the employee will trade hours with a second employee so that the second employee works during the hours for which the employee is absent and the employee works an equivalent number of hours in place of the second employee during the same pay period.
   2. Nothing in this subsection shall be construed to prevent an employer from adopting a policy that requires an employee to use earned sick time accrued pursuant to section 482 of this subchapter for an absence from work for one of the reasons set forth in subsection (a) of this section.
10. An employer shall post notice of the provisions of this section in a form provided by the Commissioner in a place conspicuous to employees at the employer's place of business. An employer shall also notify an employee of the provisions of this section at the time of the employee's hiring.
11. An employee who uses earned sick time accrued pursuant to section 482 of this subchapter shall not diminish his or her rights under sections 472 and 472a of this title.
12. The provisions against retaliation set forth in section 397 of this title shall apply to this subchapter.
13. An employer who violates this subchapter shall be subject to the penalty provisions of section 345 of this title.
14. The Commissioner shall enforce this subchapter in accordance with the procedures established in section 342a of this title. However, the appeal provision of subsection 342a(f) shall not apply to any enforcement action brought pursuant to this subsection.

    Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 484. Compliance with earned sick time requirement.

1. An employer shall be in compliance with this subchapter if either of the following occurs:
   1. The employer offers a paid time off policy or is a party to a collective bargaining agreement that provides the employee with paid time off from work that:
      1. he or she may use for all of the reasons set forth in subsection 483(a) of this subchapter; and
      2. accrues and may be used at a rate that is equal to or greater than the rate set forth in sections 482 and 483 of this subchapter.
   2. The employer offers a paid time off policy or is a party to a collective bargaining agreement that provides the employee with at least the full amount of paid time off from work required pursuant to sections 482 and 483 of this subchapter at the beginning of each annual period and the employee may use it at any time during the annual period for the reasons set forth in subsection 483(a) of this subchapter. If the employer provides an employee with the full amount of paid time off at the beginning of each annual period, the paid time off shall not carry over from one annual period to the next as provided in subdivision 483(d)(1) of this subchapter.
2. Nothing in this subchapter shall be construed to require an employer that satisfies the requirements of subsection (a) of this section to provide additional earned sick time to an employee that chooses to use paid time off that could be used for the reasons set forth in subdivisions 483(a)(1)-(5) of this subchapter for a different purpose.
3. Nothing in this subchapter shall be construed to prevent an employer from providing a paid time off policy or agreeing to a collective bargaining agreement that provides a paid time off policy that is more generous than the earned sick time provided by this subchapter.
4. 1. Nothing in this subchapter shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or paid time off policy that provides greater earned sick time rights than the rights provided by this subchapter. (d) (1)  Nothing in this subchapter shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or paid time off policy that provides greater earned sick time rights than the rights provided by this subchapter.
   2. Nothing in this subchapter shall be construed to preempt or override the terms of a collective bargaining agreement that is in effect before January 1, 2017.
5. A collective bargaining agreement or paid time off policy may not diminish the rights provided by this subchapter.

   Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 485. Severability of provisions.

If any provision of this subchapter or the application of such provision to any person or circumstances shall be held invalid, the remainder of the subchapter and the application of such provisions to persons or circumstances other than those as to which it is held invalid shall not be affected thereby.

Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 486. New employer exemption.

1. Notwithstanding any provision of this subchapter to the contrary, new employers shall not be subject to the provisions of this subchapter for a period of one year after the employer hires its first employee.
2. For purposes of enforcement under subsections 483(l)-(n) of this subchapter, an employer shall be presumed to be subject to the provisions of this subchapter unless the employer proves that a period of no more than one year elapsed between the date on which the employer hired its first employee and the date on which the employer is alleged to have violated the provisions of this subchapter.
3. No employer shall transfer an employee to a second employer with whom there is, at the time of the transfer, substantially common ownership, management, or control for the purposes of either employer claiming an exemption pursuant to subsection (a) of this section.

   Added 2015, No. 69 (Adj. Sess.), § 4, eff. Jan. 1, 2017.

§ 487. Rules.

The Commissioner may adopt rules to implement the provisions of this subchapter.

Added 2015, No. 172 (Adj. Sess.), § E.400.1, eff. Jan. 1, 2017.

§ 491. Absence on military service and training; employment and reemployment rights.

1. 1. Any duly qualified member of the Reserve Components of the U.S. Armed Forces, of the Ready Reserve, or an organized unit of the Vermont National Guard or the National Guard of another state shall, when called to state or federal service, receive the same benefits, privileges, and protections in employment regardless of the activation authority or location of service. (a) (1)  Any duly qualified member of the Reserve Components of the U.S. Armed Forces, of the Ready Reserve, or an organized unit of the Vermont National Guard or the National Guard of another state shall, when called to state or federal service, receive the same benefits, privileges, and protections in employment regardless of the activation authority or location of service.
   2. 1. Upon request, a duly qualified member of the Reserve Components of the U.S. Armed Forces, of the Ready Reserve, or the Vermont National Guard or the National Guard of another state shall be entitled to a leave of absence to engage in military drill, training, or other temporary duty pursuant to state or federal military orders. (2) (A) Upon request, a duly qualified member of the Reserve Components of the U.S. Armed Forces, of the Ready Reserve, or the Vermont National Guard or the National Guard of another state shall be entitled to a leave of absence to engage in military drill, training, or other temporary duty pursuant to state or federal military orders.
      2. A member of the Vermont National Guard or the National Guard of any state or territory who is ordered to state active duty shall be subject to the requirements of and entitled to the rights, privileges, benefits, and protections provided by the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301-4335.
      3. A leave of absence shall be with or without pay as determined by the employer.
2. A member of or an applicant for membership in the National Guard in either federal or state status as defined in 20 V.S.A. §§ 366 and 601 shall not be denied initial employment, reemployment, retention of employment, promotion, or any benefit of employment by an employer on the basis of membership, application for membership, performance of service, application for service, or obligation to serve.
3. An employer shall not discriminate in employment against any person because a person has taken any of the following actions:
   1. enforcement of a provision of this subchapter or federal law;
   2. testified or made a statement in connection with any proceeding under this subchapter or under federal law;
   3. assisted or participated in any investigation under this subchapter or federal law; or
   4. exercised any right provided by this subchapter or under federal law.

      Amended 1999, No. 138 (Adj. Sess.), § 6; 2007, No. 44 , § 1; 2015, No. 121 (Adj. Sess.), § 1; 2021, No. 10 , § 72.

§ 492. Rights and benefits.

1. Any absence for military training or State active duty shall not affect the employee's right to receive normal vacation, sick leave, bonus, advancement, and other advantages of employment normally to be anticipated in the employee's particular position.
2. Any person who is absent from employment necessitated by service in the National Guard as permitted under section 491 of this title shall be entitled to the reemployment rights and benefits provided in 38 U.S.C. §§ 4312-4318.
3. 1. If any member of the Vermont National Guard with civilian employer-sponsored insurance coverage is ordered to State active duty by the Governor for up to 30 days, or if any member of the National Guard of another state who is a Vermont employee with civilian employer-sponsored insurance is ordered to state active duty by the Governor of that state for up to 30 days, the service member may, at the member's option, continue his or her civilian health insurance under the same terms and conditions as were in effect for the month preceding the member's call to state active duty, including a continuation of the same levels of employer and employee contributions toward premiums and cost-sharing. (c) (1)  If any member of the Vermont National Guard with civilian employer-sponsored insurance coverage is ordered to State active duty by the Governor for up to 30 days, or if any member of the National Guard of another state who is a Vermont employee with civilian employer-sponsored insurance is ordered to state active duty by the Governor of that state for up to 30 days, the service member may, at the member's option, continue his or her civilian health insurance under the same terms and conditions as were in effect for the month preceding the member's call to state active duty, including a continuation of the same levels of employer and employee contributions toward premiums and cost-sharing.
   2. If a member of the Vermont National Guard is called to State active duty for more than 30 days, or if a member of the National Guard of another state who is a Vermont employee is called to state active duty for more than 30 days, the member may continue his or her civilian health insurance. For a member whose employer chooses not to continue regular contributions toward premiums and cost-sharing during the period of the member's state active duty in excess of 30 days, the State of Vermont shall be responsible for paying the employer's share of the premium and cost-sharing.
   3. The Office of the Adjutant General shall administer this subsection and may adopt policies, procedures, and guidelines to carry out the purposes of this subsection, including developing employee notice requirements, enforcement provisions, and a process for the State to remit the employer's share of premiums and cost-sharing to the appropriate entities pursuant to subdivision (2) of this subsection.

      Amended 1999, No. 138 (Adj. Sess.), § 6; 2011, No. 149 (Adj. Sess.), § 6; 2015, No. 121 (Adj. Sess.), § 2.

§ 493. Enforcement.

1. If any employer fails to comply with any of the provisions of this subchapter, the employee may bring an action in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.
2. The Attorney General or a State's Attorney may enforce the provisions of this subchapter by bringing an action in Superior Court for legal and equitable relief and may conduct civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458-2461 as though a violation of this subchapter were an unfair act in commerce.

   Amended 1999, No. 138 (Adj. Sess.), § 6a; 2015, No. 121 (Adj. Sess.), § 3.

§ 494. Definitions.

As used in this subchapter:

1. "Employer" means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this State, which has one or more individuals performing services for it within this State.
2. "Employee" means every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.
3. "Prospective employee" means an individual seeking or being sought for employment with an employer.
4. "Employment agency" means a person who undertakes, with or without compensation, to procure, refer, recruit, or place for an employer or person, the opportunity to work for an employer.
5. "Examiner" means any person licensed under 26 V.S.A. chapter 53.
6. "Polygraph examination" means any procedure which involves the use of instrumentation or a mechanical device to enable or assist the detection of deception, the verification of the truthfulness, or the rendering of a diagnostic opinion regarding either of these, and includes a lie detector or similar test.

   Added 1985, No. 89 .

§ 494a. Polygraph testing as condition of employment.

1. Except as provided in section 494b of this title, an employer or an employment agency shall not as a condition of employment, promotion, or change in status of employment, or as an express or implied condition of a benefit or privilege of employment, do any of the following:
   1. request or require that an employee or applicant for employment take or submit to a polygraph examination; or
   2. administer, cause to be administered, threaten to administer, or attempt to administer a polygraph examination to an employee or applicant for employment; or
   3. request or require that an employee or applicant for employment give an express or implied waiver of a practice prohibited under this subchapter.
2. An employer shall not refuse to hire, promote, or change the status of employment of an applicant for employment because the applicant refuses or declines a polygraph examination.

   Added 1985, No. 89 .

§ 494b. Employers permitted to require polygraph examinations.

The following employers may require that an applicant for employment take or submit to a polygraph examination, or administer or cause to be administered a polygraph examination to an applicant for employment:

1. the Department of Public Safety; 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;
2. 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;
3. any employer whose business includes the manufacture or the wholesale or retail sale of regulated drugs as defined in 18 V.S.A. § 4201 ; provided, however, that only employees who come in contact with such regulated drugs may be required to take a polygraph examination;
4. any employer authorized or required under federal law or regulations to administer polygraph examinations.

   Added 1985, No. 89 ; amended 2001, No. 38 , § 1; 2009, No. 5 , § 1; 2019, No. 73 , § 35.

§ 494c. Duties of examiner.

1. An examiner administering a polygraph examination under this subchapter shall:
   1. Prior to the examination, provide the examinee with a copy of this subchapter and a copy of all questions to be asked during the examination, which may be retained by the examinee.  This does not preclude follow-up questions as long as the examiner gives the examinee a copy of the questions.
   2. Inform the examinee as follows:
      1. the examinee has the right to accept or refuse the examination;
      2. the examinee has the right to halt an examination in progress at any time;
      3. the examinee is not required to answer any questions or give any information;
      4. any information the examinee volunteers could be used against the examinee, or made available to the employer, unless otherwise specified and agreed to in writing by the examinee; and
      5. provide the examinee with a copy of the examination results and all reports or analyses done by the examiner which are shared with the employer.
2. During a polygraph examination, an examinee shall not be asked:
   1. any questions regarding the examinee's political, religious, or labor union affiliations;
   2. questions regarding the examinee's sexual practices, social habits, or his or her marital relationship, unless the questions clearly relate to job performance;
   3. questions which are unrelated to job performance.

      Added 1985, No. 89 .

§ 494d. Employee rights in related proceedings.

No employee shall be discharged, disciplined or discriminated against in any manner for filing a complaint or testifying in any proceeding or action involving violations of the provisions of this subchapter. An employee discriminated against in violation of the provisions of this section shall be compensated by his or her employer the amount of any loss of wages and benefits arising out of such discrimination and shall be restored to his or her previous position of employment.

Added 1985, No. 89 .

§ 494e. Penalties.

Any individual violating any of the provisions of this subchapter shall be fined not less than $500.00 nor more than $1,000.00 or imprisoned not more than six months, or both, and the penalty shall not be suspended.

Added 1985, No. 89 .

§ 495. Unlawful employment practice.

1. It shall be unlawful employment practice, except where a bona fide occupational qualification requires persons of a particular race, color, religion, national origin, sex, sexual orientation, gender identity, ancestry, place of birth, age, crime victim status, or physical or mental condition:
   1. For any employer, employment agency, or labor organization to discriminate against any individual because of race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age or against a qualified individual with a disability;
   2. For any person seeking employees or for any employment agency or labor organization to cause to be printed, published, or circulated any notice or advertisement relating to employment or membership indicating any preference, limitation, specification, or discrimination based upon race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, age, or disability;
   3. For any employment agency to fail or refuse to classify properly or refer for employment or to otherwise discriminate against any individual because of race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age or against a qualified individual with a disability;
   4. For any labor organization, because of race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age to discriminate against any individual or against a qualified individual with a disability or to limit, segregate, or qualify its membership;
   5. For any employer, employment agency, labor organization, or person seeking employees to discriminate against, indicate a preference or limitation, refuse properly to classify or refer, or to limit or segregate membership on the basis of a person's having a positive test result from an HIV-related blood test;
   6. For any employer, employment agency, labor organization, or person seeking employees to request or require an applicant, prospective employee, employee, prospective member, or member to have an HIV-related blood test as a condition of employment or membership, classification, placement, or referral;
   7. For any employer, employment agency, labor organization, or person seeking employees to discriminate between employees on the basis of sex by paying wages to employees of one sex at a rate less than the rate paid to employees of the other sex for equal work that requires equal skill, effort, and responsibility and is performed under similar working conditions. An employer who is paying wages in violation of this section shall not reduce the wage rate of any other employee in order to comply with this subsection.
      1. An employer may pay different wage rates under this subsection when the differential wages are made pursuant to:
         1. A seniority system.
         2. A merit system.
         3. A system in which earnings are based on quantity or quality of production.
         4. A bona fide factor other than sex. An employer asserting that differential wages are paid pursuant to this subdivision shall demonstrate that the factor does not perpetuate a sex-based differential in compensation, is job-related with respect to the position in question, and is based upon a legitimate business consideration.
      2. 1. No employer may do any of the following: (B) (i) No employer may do any of the following:
            1. Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages or from inquiring about or discussing the wages of other employees.
            2. Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages or to inquire about or discuss the wages of other employees.
         2. Unless otherwise required by law, an employer may prohibit a human resources manager from disclosing the wages of other employees.
   8. Retaliation prohibited. An employer, employment agency, or labor organization shall not discharge or in any other manner discriminate against any employee because the employee:
      1. has opposed any act or practice that is prohibited under this chapter;
      2. has lodged a complaint or has testified, assisted, or participated in any manner with the Attorney General, a State's Attorney, the Department of Labor, or the Human Rights Commission in an investigation of prohibited acts or practices;
      3. is known by the employer to be about to lodge a complaint, testify, assist, or participate in any manner in an investigation of prohibited acts or practices;
      4. has disclosed his or her wages or has inquired about or discussed the wages of other employees; or
      5. is believed by the employer to have acted as described in subdivisions (A) through (D) of this subdivision.
2. The provisions of this section shall not be construed to limit the rights of employers to discharge employees for good cause shown.
3. The provisions of this section prohibiting discrimination on the basis of age shall apply for the benefit of persons 18 years of age or older.
4. 1. An employee shall not have a cause of action in negligence for any injury occurring to the employee on the account of an employer complying with subdivisions (a)(5) and (6) of this section. (d) (1)  An employee shall not have a cause of action in negligence for any injury occurring to the employee on the account of an employer complying with subdivisions (a)(5) and (6) of this section.
   2. A person shall not have a cause of action in negligence for any injury occurring to the person on account of an employer complying with subdivisions (a)(5) and (6) of this section.
5. The provisions of this section prohibiting discrimination on the basis of sexual orientation and gender identity shall not be construed to prohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, that is operated, supervised, or controlled by or in connection with a religious organization, from giving preference to persons of the same religion or denomination or from taking any action with respect to matters of employment that is calculated by the organization to promote the religious principles for which it is established or maintained.
6. [Repealed.]
7. Notwithstanding any provision of this subchapter, an employer shall not be prohibited from establishing and enforcing reasonable workplace policies to address matters related to employees' gender identity, including permitting an employer to establish a reasonable dress code for the workplace.
8. Nothing in this section shall require an employer to disclose the wages of an employee in response to an inquiry by another employee, unless the failure to do so would otherwise constitute unlawful employment discrimination. Unless otherwise required by law, nothing in this section shall require an employee to disclose his or her wages in response to an inquiry by another employee.

   Added 1963, No. 196 , § 1; amended 1971, No. 9 , eff. Feb. 25, 1971; 1975, No. 198 (Adj. Sess.), § 1; 1981, No. 65 , § 1; 1987, No. 176 (Adj. Sess.), §§ 1, 2; 1987, No. 176 (Adj. Sess.), §§ 1, 2; 1991, No. 135 (Adj. Sess.), § 15; 1999, No. 19 , § 4; 1999, No. 103 (Adj. Sess.), § 1; 2001, No. 81 (Adj. Sess.), § 1, eff. April 25, 2002; 2005, No. 10 , § 1; 2007, No. 41 , § 18; 2013, No. 31 , § 2; 2013, No. 35 , § 2; 2013, No. 96 (Adj. Sess.), § 129; 2017, No. 113 (Adj. Sess.), § 145; 2017, No. 184 (Adj. Sess.), § 1.

§ 495a. Persons entering into contracts with this State.

The State of Vermont and all of its contracting agencies shall include in all contracts hereafter negotiated a provision obligating the contractor to comply with this subchapter in connection with any work to be performed in this State and requiring the contractor to include a similar provision in all subcontracts for work to be performed in this State.

1963, No. 196 , § 2.

§ 495b. Penalties and enforcement.

The Attorney General or a State's Attorney may enforce the provisions of this subchapter by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance, and conducting civil investigations in accordance with the procedures established in 9 V.S.A. §§ 2458 -2461 as though an unlawful employment practice were an unfair act in commerce. Any employer, employment agency, or labor organization complained against shall have the same rights and remedies as specified therein. The Superior Courts are authorized to impose the same civil penalties and investigation costs and to order other relief to the State of Vermont or an aggrieved employee for violations of this subchapter as they are authorized to impose or order under the provisions of 9 V.S.A. §§ 2458 and 2461 in an unfair act in commerce. In addition, the Superior Courts may order restitution of wages or other benefits on behalf of an employee and may order reinstatement and other appropriate relief on behalf of an employee.

(2) Any charge or formal complaint filed by the Attorney General or a State's Attorney against a person for unlawful discrimination or sexual harassment in violation of the provisions of this chapter shall include a statement setting forth the prohibition against retaliation pursuant to subdivision 495(a)(8) of this title.

(b) Any person aggrieved by a violation of the provisions of this subchapter may bring an action in Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.

(c) Any employer who violates the provisions of subdivision 495(a)(7) of this title shall be liable to any affected employee in the amount of the underpaid wages and an equal amount as liquidated damages, in addition to any other remedies available under this section.

Added 1963, No. 196 , § 3; amended 1975, No. 198 (Adj. Sess.), § 2; 1981, No. 65 , § 2; 1999, No. 19 , § 5; 2001, No. 81 (Adj. Sess.), § 2, eff. April 25, 2002; 2015, No. 97 (Adj. Sess.), § 55; 2017, No. 183 (Adj. Sess.), § 2.

§ 495c. Application.

This subchapter shall not be construed as limiting the rights of employers to hire and fire and of labor organizations to determine the membership as long as such rights are not exercised in violation of this subchapter.

1963, No. 196 , § 4.

§ 495d. Definitions.

As used in this subchapter:

1. "Employer" means any individual, organization, or governmental body including any partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this State, and any agent of such employer, that has one or more individuals performing services for it within this State.
2. "Employee" means every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.
3. "Employment agency" means every person, corporation, association, or governmental body representative thereof engaged in the business of advertising for advising, classifying, training, or referral of persons for employment within this State, or which at the direction of any employer advertises, locates, advises, classifies, trains, refers, or selects persons to engage in any employment.
4. "Labor organization" means any organization or association that represents not less than five employees and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, promotions, or other terms and conditions of employment.
5. "Individual with a disability" means any natural person who:
   1. has a physical or mental impairment that substantially limits one or more major life activities;
   2. has a history or record of such an impairment; or
   3. is regarded as having such an impairment.
6. "Qualified individual with a disability" means:
   1. An individual with a disability who is capable of performing the essential functions of the job or jobs for which the individual is being considered with reasonable accommodation to the disability.
   2. Does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
7. "Physical or mental impairment" means:
   1. any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; or endocrine;
   2. any mental or psychological disorder, such as developmental disability, organic brain syndrome, emotional or mental condition or psychiatric disability, and specific learning disabilities;
   3. the term "physical or mental impairment" includes diseases and conditions such as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, and drug addiction and alcoholism.
8. "Substantially limits" means the degree that the impairment affects an individual's employability. An individual with a disability who is likely to experience difficulty in securing, retaining, or advancing in employment would be considered substantially limited.
9. "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, and receiving education or vocational training.
10. "Has a history or record of such an impairment" means that the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more life activity.
11. "Is regarded as having such an impairment" means that the individual:
    1. has a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer as constituting such a limitation;
    2. has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
    3. has none of the impairments defined in subdivision (7)(A) of this section but is treated by an employer as having such an impairment.
12. 1. "Reasonable accommodation" means the changes and modifications that can be made in the structure of a job or in the manner in which a job is performed unless it would impose an undue hardship on the employer. (12) (A) "Reasonable accommodation" means the changes and modifications that can be made in the structure of a job or in the manner in which a job is performed unless it would impose an undue hardship on the employer.
    2. "Reasonable accommodation" may include:

       making the facilities used by the employees, including common areas used by all employees such as hallways, restrooms, cafeterias, and lounges, readily accessible to and usable by individuals with disabilities; and

       job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, and other similar actions.

    3. Factors to be considered in determining whether an undue hardship is imposed by the requirement that reasonable accommodation be made for an individual with a disability include:
       1. the overall size of the employer's operation with respect to the number of employees, number and type of facilities, and size of budget; and
       2. the cost for the accommodation needed.
13. "Sexual harassment" is a form of sex discrimination and means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
    1. submission to that conduct is made either explicitly or implicitly a term or condition of employment;
    2. submission to or rejection of such conduct by an individual is used as a component of the basis for employment decisions affecting that individual; or
    3. the conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.
14. "Pregnancy-related condition" means a limitation of an employee's ability to perform the functions of a job caused by pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
15. "Crime victim" means any of the following:
    1. a person who has obtained a relief from abuse order issued under 15 V.S.A. § 1103 ;
    2. a person who has obtained an order against stalking or sexual assault issued under 12 V.S.A. chapter 178;
    3. a person who has obtained an order against abuse of a vulnerable adult issued under 33 V.S.A. chapter 69; or
    4. 1. a victim as defined in 13 V.S.A. § 5301 , provided that the victim is identified as a crime victim in an affidavit filed by a law enforcement official with a prosecuting attorney of competent state or federal jurisdiction; and (D) (i) a victim as defined in 13 V.S.A. § 5301 , provided that the victim is identified as a crime victim in an affidavit filed by a law enforcement official with a prosecuting attorney of competent state or federal jurisdiction; and
       2. shall include the victim's child, foster child, parent, spouse, stepchild or ward of the victim who lives with the victim, or a parent of the victim's spouse, provided that the individual is not identified in the affidavit as the defendant.

          Added 1975, No. 198 (Adj. Sess.), § 3; amended 1981, No. 65 , § 3; 1993, No. 39 , §§ 2, 3, eff. Oct. 1, 1993; 1999, No. 103 (Adj. Sess.), § 2; 2013, No. 96 (Adj. Sess.), § 130; 2017, No. 21 , § 1, eff. Jan. 1, 2018; 2017, No. 113 (Adj. Sess.), § 146; 2017, No. 184 (Adj. Sess.), § 2.

§ 495e. Restitution.

The Superior Courts may order restitution of wages or other benefits on behalf of a class of employees similarly situated, and may order reinstatement and other appropriate relief on behalf of a class of employees.

Added 1975, No. 198 (Adj. Sess.), § 4, eff. July 1, 1977.

§ 495f. Exemptions.

Notwithstanding any other provision of this subchapter, it is not unlawful discrimination on the basis of age or disability for any employer, employment agency or labor organization to observe the terms of a bona fide seniority system or any bona fide employee benefit plan, such as a retirement, pension, or life or health insurance plan, any of which is not a subterfuge to evade the purposes of this subchapter. No employee benefit plan, however, excuses the failure to hire any individual. No seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual because of age. Mandatory retirement on account of age, necessitated under a police or firefighter retirement system, is specifically authorized.

Added 1981, No. 65 , § 4; amended 1999, No. 103 (Adj. Sess.), § 3.

§ 495g. Provision applicable to college professors.

Nothing in this subchapter shall be construed to prohibit any institution of higher education as defined by section 1201(a) of the federal Higher Education Act of 1965 from retiring any employee who is serving under a contract of unlimited tenure, who attains 65 years of age prior to July 1, 1982, or 70 years of age thereafter. Any employee whose tenure contract is terminated may, in the discretion of the institution, be allowed to continue in the employ of the institution on a nontenured basis.

Added 1981, No. 65 , § 5; amended 2017, No. 74 , § 38.

§ 495h. Sexual harassment.

All employers, employment agencies, and labor organizations have an obligation to ensure a workplace free of sexual harassment.

(2) All persons who engage a person to perform work or services have an obligation to ensure a working relationship with that person that is free from sexual harassment.

(b) Every employer shall:

1. Adopt a policy against sexual harassment that shall include:
   1. a statement that sexual harassment in the workplace is unlawful;
   2. 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;
   3. a description and examples of sexual harassment;
   4. a statement of the range of consequences for employees who commit sexual harassment;
   5. 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 persons to whom complaints should be made; and
   6. the complaint process of the appropriate State and federal employment discrimination enforcement agencies, and directions as to how to contact such agencies.
2. Post in a prominent and accessible location in the workplace, a poster providing, at a minimum, the elements of the employer's sexual harassment policy required by subdivision (1) of this subsection.
3. Provide to all employees an individual written copy of the employer's policy against sexual harassment.

   (c) (1) Employers shall provide individual copies of their written policies to new employees upon their being hired.

   (2) If an employer makes changes to its policy against sexual harassment, it shall provide to all employees a written copy of the updated policy.

   (d) The Commissioner of Labor shall prepare and provide to employers subject to this section a model policy and a model poster, which may be used by employers for the purposes of this section.

   (e) A claim that an individual did not receive the information required to be provided by this section shall not, in and of itself, result in the automatic liability of any employer to any current or former employee or applicant in any action alleging sexual harassment. An employer's compliance with the notice requirements of this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.

   (f) (1) Employers and labor organizations are encouraged to conduct an education and training program for all new employees and members that includes at a minimum all the information outlined in this section within one year after commencement of employment.

   (2) Employers and labor organizations are encouraged to conduct an annual education and training program for all employees and members that includes at a minimum all the information outlined in this section.

   (3) Employers are encouraged to conduct additional training for new supervisory and managerial employees and members within one year after commencement of employment or membership, which should include at a minimum the information outlined in this section, the specific responsibilities of supervisory and managerial employees, and the actions that these employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.

   Employers, labor organizations, and appropriate State agencies are encouraged to cooperate in making this training available.

   (g) (1) An employer shall not require any employee or prospective employee, as a condition of employment, to sign an agreement or waiver that does either of the following:

   1. prohibits, prevents, or otherwise restricts the employee or prospective employee from opposing, disclosing, reporting, or participating in an investigation of sexual harassment; or
   2. 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.

      (2) Any provision of an agreement that violates subdivision (1) of this subsection shall be void and unenforceable.

      (h) (1) An agreement to settle a claim of sexual harassment shall not prohibit, prevent, or otherwise restrict the employee from working for the employer or any parent company, subsidiary, division, or affiliate of the employer.

      (2) An agreement to settle a sexual harassment claim shall expressly state that:

      (A) it does not prohibit, prevent, or otherwise restrict the individual who made the claim from doing any of the following:

      1. lodging a complaint of sexual harassment committed by any person with the Attorney General, a State's Attorney, the Human Rights Commission, the Equal Employment Opportunity Commission, or any other State or federal agency;
      2. testifying, assisting, or participating in any manner with an investigation related to a claim of sexual harassment conducted by the Attorney General, a State's Attorney, the Human Rights Commission, the Equal Employment Opportunity Commission, or any other State or federal agency;
      3. complying with a valid request for discovery in relation to civil litigation or testifying in a hearing or trial related to a claim of sexual harassment that is conducted by a court, pursuant to an arbitration agreement, or before another appropriate tribunal; or
      4. exercising any right the individual may have pursuant to State or federal labor relations laws to engage in concerted activities with other employees for the purposes of collective bargaining or mutual aid and protection; and

         (B) it does not waive any rights or claims that may arise after the date the settlement agreement is executed.

         (3) Any provision of an agreement to settle a sexual harassment claim that violates subdivision (1) or (2) of this subsection shall be void and unenforceable with respect to the individual who made the claim.

4. Nothing in subdivision (2) of this subsection shall be construed to prevent an agreement to settle a sexual harassment claim from waiving or releasing the claimant's right to seek or obtain any remedies relating to sexual harassment of the claimant by another party to the agreement that occurred before the date on which the agreement is executed.

   (i) (1) (A) (i) For the purpose of assessing compliance with the provisions of this section, the Attorney General or designee, or, if the employer is the State, the Human Rights Commission or designee, may, with 48 hours' notice, at reasonable times and without unduly disrupting business operations enter and inspect any place of business or employment, question any person who is authorized by the employer to receive or investigate complaints of sexual harassment, and examine an employer's records, policies, procedures, and training materials related to the prevention of sexual harassment and the requirements of this section.

   (ii) An employer may agree to waive or shorten the 48-hour notice period.

   (iii) As used in this subsection (i), the term "records" includes de-identified data regarding the number of complaints of sexual harassment received and the resolution of each complaint.

   (B) The employer shall at reasonable times and without unduly disrupting business operations make any persons who are authorized by the employer to receive or investigate complaints of sexual harassment and any records, policies, procedures, and training materials related to the prevention of sexual harassment and the requirements of this section available to the Attorney General or designee or, if the employer is the State, the Human Rights Commission or designee.

   (2) Following an inspection and examination pursuant to subdivision (1) of this subsection (i), the Attorney General or the Human Rights Commission shall notify the employer of the results of the inspection and examination, including any issues or deficiencies identified, provide resources regarding practices and procedures for the prevention of sexual harassment that the employer may wish to adopt or utilize, and identify any technical assistance that the Attorney General or the Human Rights Commission may be able to provide to help the employer address any identified issues or deficiencies. If the Attorney General or the Human Rights Commission determines that it is necessary to ensure the employer's workplace is free from sexual harassment, the employer may be required, for a period of up to three years, to provide an annual education and training program that satisfies the provisions of subdivision (4) of this subsection to all employees or to conduct an annual, anonymous working-climate survey, or both.

   (3) (A) The Attorney General shall keep records, materials, and information related to or obtained through an inspection carried out pursuant to this subsection (i) confidential as provided pursuant to 9 V.S.A. § 2460(a)(4) .

   (B) The Human Rights Commission shall keep records, materials, and information related to or obtained through an inspection carried out pursuant to this subsection (i) confidential as provided pursuant to 9 V.S.A. § 4555 .

   (4) If required by the Attorney General or Human Rights Commission pursuant to subdivision (2) of this subsection, an employer shall conduct:

   1. an annual education and training program for all employees that includes at a minimum all the information outlined in this section; and
   2. an annual education and training program for supervisory and managerial employees that includes at a minimum all the information outlined in this section, the specific responsibilities of supervisory and managerial employees, and the actions that these employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.

      (j) The Attorney General shall adopt rules as necessary to implement the provisions of this section.

      Added 1993, No. 39 , § 4, eff. Oct. 1, 1993; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2017, No. 183 (Adj. Sess.), § 1.

§ 495i. Employment based on credit information; prohibitions.

1. As used in this section:
   1. "Confidential financial information" means sensitive financial information of commercial value that a customer or client of the employer gives explicit authorization for the employer to obtain, process, and store and that the employer entrusts only to managers or employees as a necessary function of their job duties.
   2. "Credit history" means information obtained from a third party, whether or not contained in a credit report, that reflects or pertains to an individual's prior or current:
      1. borrowing or repaying behavior, including the accumulation, payment, or discharge of financial obligations; or
      2. financial condition or ability to meet financial obligations, including debts owed, payment history, savings or checking account balances, or savings or checking account numbers.
   3. "Credit report" has the same meaning as in 9 V.S.A. § 2480a .
2. An employer shall not:
   1. Fail or refuse to hire or recruit; discharge; or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual's credit report or credit history.
   2. Inquire about an applicant or employee's credit report or credit history.
3. 1. An employer is exempt from the provisions of subsection (b) of this section if one or more of the following conditions are met: (c) (1)  An employer is exempt from the provisions of subsection (b) of this section if one or more of the following conditions are met:
      1. The information is required by State or federal law or regulation.
      2. The position of employment involves access to confidential financial information.
      3. The employer is a financial institution as defined in 8 V.S.A. § 11101(32) or a credit union as defined in 8 V.S.A. § 30101(5) .
      4. The position of employment is that of a law enforcement officer as defined in 20 V.S.A. § 2358 , emergency medical personnel as defined in 24 V.S.A. § 2651(6) , or a firefighter as defined in 20 V.S.A. § 3151(3) .
      5. The position of employment requires a financial fiduciary responsibility to the employer or a client of the employer, including the authority to issue payments, collect debts, transfer money, or enter into contracts.
      6. The employer can demonstrate that the information is a valid and reliable predictor of employee performance in the specific position of employment.
      7. The position of employment involves access to an employer's payroll information.
   2. An employer that is exempt from the provisions of subsection (b) of this section may not use an employee's or applicant's credit report or history as the sole factor in decisions regarding employment, compensation, or a term, condition, or privilege of employment.
4. If an employer seeks to obtain or act upon an employee's or applicant's credit report or credit history pursuant to subsection (c) of this section that contains information about the employee's or applicant's credit score, credit account balances, payment history, savings or checking account balances, or savings or checking account numbers, the employer shall:
   1. Obtain the employee's or applicant's written consent each time the employer seeks to obtain the employee's or applicant's credit report.
   2. Disclose in writing to the employee or applicant the employer's reasons for accessing the credit report, and if an adverse employment action is taken based upon the credit report, disclose the reasons for the action in writing. The employee or applicant has the right to contest the accuracy of the credit report or credit history.
   3. Ensure that none of the costs associated with obtaining an employee's or an applicant's credit report or credit history are passed on to the employee or applicant.
   4. Ensure that the information in the employee's or applicant's credit report or credit history is kept confidential and, if the employment is terminated or the applicant is not hired by the employer, provide the employee or applicant with the credit report or have the credit report destroyed in a secure manner which ensures the confidentiality of the information in the report.
5. An employer shall not discharge or in any other manner discriminate against an employee or applicant who has filed a complaint of unlawful employment practices in violation of this section or who has cooperated with the Attorney General or a State's Attorney in an investigation of such practices or who is about to lodge a complaint or cooperate in an investigation or because the employer believes that the employee or applicant may lodge a complaint or cooperate in an investigation.
6. Notwithstanding subsection (c) of this section, an employer shall not seek or act upon credit reports or credit histories in a manner that results in adverse employment discrimination prohibited by federal or State law, including section 495 of this title and Title VII of the Civil Rights Act of 1964.
7. This section shall apply only to employers, employees, and applicants for employment and only to employment-related decisions based on a person's credit history or credit report. It shall not affect the rights of any person, including financial lenders or investors, to obtain credit reports pursuant to other law.

   Added 2011, No. 154 (Adj. Sess.), § 2.

§ 495j. Criminal history records; employment applications.

1. Except as provided in subsection (b) of this section, an employer shall not request criminal history record information on its initial employee application form. An employer 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.
2. 1. An employer may inquire about criminal convictions on an initial employee application form if the following conditions are met: (b) (1)  An employer may inquire about criminal convictions on an initial employee application form if the following conditions are met:
      1. 1. the prospective employee is applying for a position for which any federal or State law or regulation creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses; or (A) (i) the prospective employee is applying for a position for which any federal or State law or regulation creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses; or
         2. the employer or an affiliate of the employer is subject to an obligation imposed by any federal or State law or regulation not to employ an individual, in either one or more positions, who has been convicted of one or more types of criminal offenses; and
      2. the questions on the application form are limited to the types of criminal offenses creating the disqualification or obligation.
   2. An employer shall be permitted to inquire about criminal convictions on an initial employee application form pursuant to subdivision (1) of this subsection even if the federal or State law or regulation creating an obligation for the employer or its affiliate not to employ an individual who has been convicted of one or more types of criminal offenses also permits the employer or its affiliate to obtain a waiver that would allow the employer or its affiliate to employ such an individual.
3. If an employer inquires about a prospective employee's criminal history record information, the prospective employee, if still eligible for the position under applicable federal or State law, must be afforded an opportunity to explain the information and the circumstances regarding any convictions, including postconviction rehabilitation.
4. An employer who violates the provisions of this section shall be assessed a civil penalty of up to $100.00 for each violation.
5. As used in this section:
   1. "Criminal history record" has the same meaning as set forth in 20 V.S.A. § 2056a .
   2. "Employee" has the same meaning as set forth in section 495d of this chapter.
   3. "Employer" has the same meaning as set forth in section 495d of this chapter.

      Added 2015, No. 81 (Adj. Sess.), § 1, eff. July 1, 2017.

§ 495k. Accommodations for pregnancy-related conditions.

1. 1. It shall be an unlawful employment practice for an employer to fail to provide a reasonable accommodation for an employee's pregnancy-related condition, unless it would impose an undue hardship on the employer. (a) (1)  It shall be an unlawful employment practice for an employer to fail to provide a reasonable accommodation for an employee's pregnancy-related condition, unless it would impose an undue hardship on the employer.
   2. An employee with a pregnancy-related condition, regardless of whether the employee is an "individual with a disability" as defined in subdivision 495d(5) of this subchapter, shall have the same rights and be subject to the same standards with respect to the provision of a reasonable accommodation, pursuant to this subchapter, as a qualified individual with a disability as defined in subdivision 495d(6) of this subchapter.
2. Nothing in this section shall be construed to diminish the rights, privileges, or remedies of an employee pursuant to federal or State law, a collective bargaining agreement, or an employment contract.
3. An employer shall post notice of the provisions of this section in a form provided by the Commissioner in a place conspicuous to employees at the employer's place of business.
4. Nothing in this section shall be construed to indicate or deem that a pregnancy-related condition necessarily constitutes a disability.

   Added 2017, No. 21 , § 2, eff. Jan. 1, 2018.

§ 21/495l. Social media account privacy; prohibitions.

1. As used in this section:
   1. "Social media account" means an account with an electronic medium or service through which users create, share, and interact with content, including videos, still photographs, blogs, video blogs, podcasts, instant or text messages, e-mail, online services or accounts, or Internet website profiles or locations. "Social media account" does not include an account provided by an employer or intended to be used primarily on behalf of an employer.
   2. "Specifically identified content" means data, information, or other content stored in a social media account that is identified with sufficient particularity to distinguish the individual piece of content being sought from any other data, information, or content stored in the account. "Specifically identified content" shall not include a username, password, or other means of authentication for the purpose of accessing an employee's or applicant's social media account.
2. An employer shall not require, request, or coerce an employee or applicant to do any of the following:
   1. disclose a username, password, or other means of authentication, or turn over an unlocked personal electronic device for the purpose of accessing the employee's or applicant's social media account;
   2. access a social media account in the presence of the employer;
   3. divulge or present any content from the employee's or applicant's social media account; or
   4. change the account or privacy settings of the employee's or applicant's social media account to increase third-party access to its contents.
3. An employer shall not require or coerce an employee or applicant to add anyone, including the employer, to his or her list of contacts associated with a social media account.
4. No agreement by an employee to waive his or her rights under this section shall be valid.
5. 1. Nothing in this section shall preclude an employer from requesting an employee to share specifically identified content for the purpose of: (e) (1)  Nothing in this section shall preclude an employer from requesting an employee to share specifically identified content for the purpose of:
      1. complying with the employer's legal and regulatory obligations;
      2. investigating an allegation of the unauthorized transfer or disclosure of an employer's proprietary or confidential information or financial data through an employee's or an applicant's social media account; or
      3. investigating an allegation of unlawful harassment, threats of violence in the workplace, or discriminatory or disparaging content concerning another employee.
   2. Nothing in this section shall prohibit or restrict a law enforcement agency, as defined in 15 V.S.A. § 1151(5) , from requesting or requiring:
      1. an applicant to provide access to the applicant's social media account as part of a screening or fitness determination during the hiring process; or
      2. an employee to provide access to the employee's social media account in relation to a continued fitness determination or an allegation or investigation of employee misconduct, a violation of policy, or a violation of law.
   3. Nothing in this section shall restrict or otherwise prohibit a law enforcement agency, as defined in 15 V.S.A. § 1151(5) , from retaining any social media account information acquired pursuant to this subsection, provided that the information shall be protected in accordance with law and the law enforcement agency's policy.
   4. Nothing in this section shall be construed to prevent an employer from complying with the requirements of State or federal law.
6. Nothing in this section shall preclude an employer from requesting or requiring an employee to provide a username or password that is necessary to access an employer-issued electronic device.
7. An employer shall not discharge or in any other manner retaliate against an employee who exercises or attempts to exercise his or her rights under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.

   Added 2017, No. 37 , § 1, eff. Jan. 1, 2018.

§ 495m. Salary history; employment applications.

1. An employer shall not:
   1. inquire about or seek information regarding a prospective employee's current or past compensation from either the prospective employee or a current or former employer of the prospective employee;
   2. require that a prospective employee's current or past compensation satisfy minimum or maximum criteria; or
   3. determine whether to interview a prospective employee based on the prospective employee's current or past compensation.
2. Notwithstanding subdivision (a)(1) of this section, if a prospective employee voluntarily discloses information about his or her current or past compensation, an employer may, after making an offer of employment with compensation to the prospective employee, seek to confirm or request that the prospective employee confirm that information.
3. Nothing in this section shall be construed to prevent an employer from:
   1. inquiring about a prospective employee's salary expectations or requirements; or
   2. providing information about the wages, benefits, compensation, or salary offered in relation to a position.
4. As used in this section, "compensation" includes wages, salary, bonuses, benefits, fringe benefits, and equity-based compensation.

   Added 2017, No. 126 (Adj. Sess.), § 1.

§ 495n. Sexual harassment complaints; notice to Attorney General and Human Rights Commission.

1. A person that files a claim of sexual harassment pursuant to section 495b of this subchapter in which neither the Attorney General nor the Human Rights Commission is a party shall provide notice of the action to the Attorney General and the Human Rights Commission within 14 days after filing the complaint. The notice may be submitted electronically and shall include a copy of the filed complaint.
2. 1. Upon receiving notice of a complaint in which the State is a party, the Human Rights Commission may elect to: (b) (1)  Upon receiving notice of a complaint in which the State is a party, the Human Rights Commission may elect to:
      1. intervene in the action to seek remedies pursuant to section 495b of this subchapter; or
      2. without becoming a party to the action, file a statement with the court addressing questions of law related to the provisions of this subchapter.
   2. Upon receiving notice of a complaint in which the State is not a party, the Attorney General may elect to:
      1. intervene in the action to seek remedies pursuant to section 495b of this subchapter; or
      2. without becoming a party to the action, file a statement with the court addressing questions of law related to the provisions of this subchapter.

         Added 2017, No. 183 (Adj. Sess.), § 7.

§ 496. Legislative leave.

1. Any person who, in order to serve as a member of the General Assembly, must leave a full-time position in the employ of any employer, shall be entitled to a temporary or partial leave of absence for the purpose of allowing such employee to perform any official duty in connection with his or her elected office.  Such leave of absence shall not cause loss of job status, seniority, or the right to participate in insurance and other employee benefits during the leave of absence.
2. An employee who intends to seek election to the General Assembly and to invoke, if elected, his or her right to a leave of absence pursuant to subsection (a) of this section, shall notify his or her employer of those intentions in writing within 10 days after filing the primary election nominating petition required by 17 V.S.A. § 2353 or of taking any other action required by 17 V.S.A. chapter 49, to place his or her name on a primary or general election ballot.  An employee who fails to give notice to his or her employer as required by this section shall be deemed to have waived his or her right to a leave of absence under subsection (a) of this section.
3. An employer who contends that granting the leave of absence required by subsection (a) of this section will cause unreasonable hardship for his or her business may appeal for relief by letter to the Chair of the State Labor Relations Board created by 3 V.S.A. § 921 .  The right to such appeal shall be waived unless it is filed within 14 days of receipt of the notice required by subsection (b) of this section.  The appeal shall state the name of the employee and the reasons for the alleged unreasonable hardship.  The remedy created by this subsection shall be the exclusive remedy for an employer who claims unreasonable hardship as a result of the application to him or her of subsection (a) of this section.
4. The Chair of the State Labor Relations Board, or any member of the Board designated by the Chair, shall serve as an arbitrator in any case appealed pursuant to subsection (c) of this section.  The proceedings shall include an opportunity for the employee to respond, orally or in writing, to the allegations of unreasonable hardship raised by the employer, and shall be conducted in accord with the rules of practice of the State Labor Relations Board.  Within 30 days of receipt of a notice of appeal, the arbitrator shall issue an order, which shall be binding on both parties, either granting or denying the employer's claim of unreasonable hardship.  If the employer's claim is granted, the employee shall not be entitled to the protection of subsection (a) of this section. In reaching his or her decision, the arbitrator shall consider, but is not limited to, the following factors:
   1. the length of time the employee has been employed by the employer;
   2. the number of employees in the employer's business;
   3. the nature of the employer's business;
   4. the nature of the position held by the employee and the ease or difficulty and cost of temporarily filling the position during the leave of absence; and
   5. any agreement entered into between the employee and employer as a condition of employment.
5. This section is not applicable if the employer employs five or fewer persons immediately prior to the first day of the leave of absence.
6. Any attorney, party, witness, or juror who, while a member of and during sessions of the General Assembly, is assigned or scheduled to appear in any court of the State of Vermont shall be entitled to a leave of absence or postponement from such judicial duties when his or her duties in the Legislature are more compelling, for the purpose of allowing the member to perform any official duties in connection with his or her elected office.  The leave of absence or postponement shall not prejudice the member or the cause involved.

   Added 1979, No. 162 (Adj. Sess.); amended 1981, No. 230 (Adj. Sess.).

§ 496a. State funds; union organizing.

An employer that is the recipient of a grant of State funds in a single grant of more than $1,000.00 shall certify to the State that none of the funds will be used to interfere with or restrain the exercise of an employee's rights with respect to unionization and upon request shall provide records to the Secretary of Administration which attest to such certification.

Added 2011, No. 154 (Adj. Sess.), § 4; amended 2013, No. 1 , § 94, eff. March 7, 2013.

§ 497. Purpose.

The purpose of this subchapter is to carry on a continuing program to promote the employment of people with disabilities in Vermont by creating statewide interest in the rehabilitation and employment of people with disabilities and by obtaining and maintaining cooperation with all public and private groups and individuals in this field.

1963, No. 200 , § 1, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 2.

§ 497a. Committee established.

There is hereby established a permanent committee to be known as the Vermont Governor's Committee on Employment of People with Disabilities, to consist of 23 members, including one representative each from the Vermont Department of Labor's Workforce Development Division and the Jobs for Veterans State Grant, one representative from the Department of Disabilities, Aging, and Independent Living, Vocational Rehabilitation Division and one from the Division for the Blind and Visually Impaired, one representative of the U.S. Department of Veterans Affairs, one representative of the State of Vermont Office of Veterans Affairs, and 17 members to be appointed by the Governor. The appointive members shall hold office for the term specified or until their successors are named by the Governor. The members shall receive no salary for their services as such, but the necessary expenses of the Committee shall be paid by the State.

Added 1963, No. 200 , § 2, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 51; 2015, No. 51 , § C.5, eff. June 3, 2015.

§ 497b. Duties.

1. The Committee shall coordinate a program to promote the employment of people with disabilities by creating statewide interest in the rehabilitation and employment of people with disabilities and by obtaining and maintaining cooperation from all public and private groups in this field. The Committee shall work in cooperation with the President's Committee on Employment of People with Disabilities in order to carry out more effectively the purposes of this subchapter.
2. [Repealed.]

   Added 1963, No. 200 , § 3, eff. June 29, 1963; amended 1985, No. 179 (Adj. Sess.), § 2, eff. May 13, 1986; 1991, No. 168 (Adj. Sess.), § 4; 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012.

§ 497c. Disability awareness month.

The month of October is designated as "Disability Awareness Month."

Added 1963, No. 200 , § 4, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 5.

§ 497d. Powers.

The Vermont Governor's Committee on Employment of People with Disabilities is authorized to receive any gifts, grants, or donations made for any of the purposes of its program.

1963, No. 200 , § 6, eff. June 29, 1963; amended 1991, No. 168 (Adj. Sess.), § 6.

§ 497e. Funds; revenue; use.

1. The Chair of the Governor's Committee on Employment of People with Disabilities or his or her designated representative may authorize or sponsor fund-raising events and the revenue therefrom shall be placed in the account of the Governor's Committee on Employment of People with Disabilities.
2. The Chair or his or her designated representative may authorize the sale of products which relate to Vermonters with disabilities and the revenue therefrom shall be placed in the account of the Governor's Committee on Employment of People with Disabilities.
3. The funds credited to the Governor's Committee on Employment of People with Disabilities shall remain in the special account from year to year and shall not be put back into the General Fund.
4. The Governor's Committee on Employment of People with Disabilities is also authorized to receive and keep in its account any gifts, grants, or donations.
5. This account will be used in accordance with any of the purposes of the Governor's Committee on Employment of People with Disabilities program or activities, as established in this subchapter.

   Added 1975, No. 87 ; amended 1991, No. 168 (Adj. Sess.), § 7; 2013, No. 96 (Adj. Sess.), § 131.

§ 498. Repealed. 1981, No. 65, § 6.

§ 499. Jurors and witnesses.

1. No employer may discharge an employee by reason of his or her service as a juror, or penalize such employee or deprive him or her of any right, privilege, or benefit on a basis which discriminates between such employee and other employees not serving as jurors.  All employees shall be considered in the service of their employer during all times while serving as jurors in accordance with this section for purposes of determining seniority, fringe benefits, credit toward vacations, and other rights, privileges, and benefits of employment.
2. No employer may discharge an employee by reason of the employee's absence from work while in attendance as a witness pursuant to a summons duly issued and served in any proceeding, civil or criminal, in any court of competent jurisdiction within or without the State, or in any other proceeding before a board, commission, attorney, or other person or tribunal in the State authorized by law to hear testimony under oath; nor shall an employer penalize such employee or deprive him or her of any right, privilege, or benefit on a basis which discriminates between such employee and other employees not appearing as witnesses.  All employees shall be considered in the service of their employer while appearing as witnesses in accordance with this section for purposes of determining seniority, fringe benefits, credit toward vacations, and other rights, privileges, and benefits of employment.
3. A person who violates a provision of this section shall be fined not more than $200.00.

   Added 1969, No. 228 (Adj. Sess.), § 5, eff. March 31, 1970.

Cross References

Cross references. Excuse from jury duty by reason of undue hardship, see 4 V.S.A. § 962.

Excuse from jury service by reason of undue hardship on employer, see Rule 2, Rules for Qualification, List, Selection and Summoning of All Jurors.

Jurors' fees, see 32 V.S.A § 1511 et seq.

Witness fees, see 32 V.S.A § 1551 et seq.

§ 501. Definitions.

As used in this subchapter:

1. "Person who is blind or visually impaired" means a person whose visual acuity with correction is no better than 20/60, or whose field of vision subtends an angle of no greater than 20 degrees.
2. "Division" means the Division for the Blind and Visually Impaired.
3. "State property" means any building or land owned, leased, or controlled by the Department of Buildings and General Services.
4. "Vending facility" means a cafeteria, snack bar, cart service, concession stand, or other facility for the sale of newspapers, periodicals, confection, tobacco products, foods, beverages, and other articles or services which is operated by a person licensed under this subchapter.
5. "Vending machine" means any coin or currency operated machine that sells food, tobacco, beverages, sundries, or other retail merchandise or service, but shall not include vending machines used in connection with the operation of rest room facilities.

   Added 1983, No. 221 (Adj. Sess.), § 2; amended 1995, No. 148 (Adj. Sess.), § 4(c)(1); 2013, No. 96 (Adj. Sess.), § 132.

§ 502. Duties.

The Division shall have the authority to:

1. establish vending facilities on State property;
2. coordinate with the Commissioner of Buildings and General Services or the designee of the Commissioner, for the establishment of vending facilities;
3. issue licenses to persons who are blind or visually impaired for the operation of vending facilities on State property;
4. provide vending facility equipment and an adequate initial stock of suitable articles to licensed persons who are blind or visually impaired;
5. provide the necessary training and supervision to licensed persons who are blind or visually impaired;
6. adopt rules to implement the provisions of this subchapter including criteria for the selection and operation of vending facilities and machines, distribution of income to vendors, and grievance procedures.

   Added 1983, No. 221 (Adj. Sess.), § 2; amended 1995, No. 148 (Adj. Sess.), § 4(c)(1), eff. May 6, 1996; 2013, No. 96 (Adj. Sess.), § 133.

§ 503. Vending machines.

If it is determined by the Department of Disabilities, Aging, and Independent Living and the Department of Buildings and General Services that a vending facility is not economically feasible in a particular location, vending machines may be placed in that location. Contracts shall be awarded by the Department of Disabilities, Aging, and Independent Living in accordance with the procedures set forth in 29 V.S.A. § 161 , notwithstanding the $50,000.00 limitation therein.

Added 1983, No. 221 (Adj. Sess.), § 2; amended 1995, No. 62 , § 56, eff. April 26, 1995; 1995, No. 148 (Adj. Sess.), § 4(c)(1); 2005, No. 174 (Adj. Sess.), § 52.

§ 504. Income from vending facilities and machines.

1. All net income from a vending facility on State property shall accrue to the person who is blind or visually impaired and licensed to operate that facility.
2. All net income from vending machines not placed within vending facilities on State property shall accrue to the Division.
3. Income which accrues to the Division under this subchapter shall be used to:
   1. maintain or enhance the vending facilities program;
   2. provide benefit programs, including health insurance or pension plans for licensed persons who are blind or visually impaired who operate vending facilities;
   3. provide vocational rehabilitation services for persons who are blind or visually impaired.

      Added 1983, No. 221 (Adj. Sess.), § 2; amended 2005, No. 71 , § 135; 2013, No. 96 (Adj. Sess.), § 134.

§ 505. Vending facilities; operation by other than a person who is blind or visually impaired.

Where vending facilities on State property are operated by those other than persons who are blind or visually impaired on July 1, 1984, the contracts of these vending facilities may be renewed or extended. A person who does not intend to renew or extend such a contract shall so notify the Director of the Division in a timely manner. Within 30 days of such notice, the Director shall determine whether the vending facility is suited for operation by a person who is blind or visually impaired. If the Director determines that the facility is suited for operation by such person, preference in operation of the facility shall be given to a person who is blind or visually impaired.

Added 1983, No. 221 (Adj. Sess.), § 2; amended 2013, No. 96 (Adj. Sess.), § 135.

§ 506. Exemptions.

The following are exempt from the provisions of this subchapter:

1. food services or vending machines provided by hospitals or residential institutions as a direct service to patients, inmates, students or otherwise institutionalized persons; and
2. State property not under the control of the Department of Buildings and General Services.

   Added 1983, No. 221 (Adj. Sess.), § 2; amended 1995, No. 148 (Adj. Sess.), § 4(c)(1).

§ 507. Whistleblower protection; health care employees; prohibitions; hearing; notice.

1. For the purposes of this subchapter:
   1. The "American Nurses Credentialing Center (ANCC)" means the national organization that developed the Magnet Recognition Program. The Magnet Recognition Program recognizes excellence in nursing services and is based on quality indicators and standards of nursing practice as defined in the American Nurses Association's Scope and Standards for Nurse Administrators. The ANCC has the authority to designate "Magnet" status to hospitals that have demonstrated their current and ongoing commitment to excellence in nursing practice.
   2. "Employee" means any person who performs services for wages or other remuneration under the control and direction of any public or private employer.
   3. "Employer" means:
      1. a hospital as defined in 18 V.S.A. § 1902(1) ; or
      2. a nursing home as defined in 33 V.S.A. § 7102(7) .
   4. "Improper quality of patient care" means any practice, procedure, action, or failure to act of an employee or employer that violates any provisions of the Nurse Practice Act, codes of ethics, hospital policies, or any other established standards of care related to public or patient health or safety.
   5. "Law" means any law, rule, or regulation duly enacted or adopted by this State, a political subdivision of this State, or the United States.
   6. "Public body" means:
      1. the United States Congress, any State legislature, or any popularly elected local government body, or any member or employee thereof;
      2. any federal, State, or local judiciary, or any member or employee thereof, or any jury;
      3. any federal, State, or local regulatory, administrative, or public agency or authority, or instrumentality thereof;
      4. any federal, State, or local law enforcement agency, prosecutorial office, or police or peace officer; or
      5. any division, board, bureau, office, committee, or commission of any of the public bodies described in this subdivision.
   7. "Retaliatory action" means discharge, threat, suspension, demotion, denial of promotion, discrimination, or other adverse employment action regarding the employee's compensation, terms, conditions, location, or privileges of employment.
   8. "Supervisor" means any person who has the authority to direct and control the work performance of an employee.
2. No employer shall take retaliatory action against any employee because the employee does any of the following:
   1. Discloses or threatens to disclose to any person or entity any activity, policy, practice, procedure, action, or failure to act of the employer or agent of the employer that the employee reasonably believes is a violation of any law or that the employee reasonably believes constitutes improper quality of patient care.
   2. Provides information to, or testifies before, any public body conducting an investigation, a hearing, or an inquiry that involves allegations that the employer has violated any law or has engaged in behavior constituting improper quality of patient care.
   3. Objects to or refuses to participate in any activity, policy, or practice of the employer or agent that the employee reasonably believes is in violation of a law or constitutes improper quality of patient care.
3. Subdivisions (b)(1) and (3) of this section shall not apply unless an employee first reports the alleged violation of law or improper quality of patient care to the employer, supervisor, or other person designated by the employer to address reports by employees of improper quality of patient care, and the employer has had a reasonable opportunity to address the violation. The employer shall address the violation under its compliance plan, if one exists. The employee shall not be required to make a report under this subsection if the employee reasonably believes that doing so would be futile because making the report would not result in appropriate action to address the violation.
4. Nothing in this subchapter shall be deemed to diminish the rights, privileges, or remedies of any employee under any law or under any collective bargaining agreement or employment contract.

   Added 2003, No. 134 (Adj. Sess.), § 2.

§ 508. Enforcement.

1. An employee aggrieved by a violation of this subdivision may:
   1. utilize any available internal process, grievance procedure, or similar process available to the employee to maintain or restore any loss of employment rights with the employer; or
   2. bring an action in the Superior Court of the county in which the violation is alleged to have occurred.
2. The initiation or completion of an internal process, grievance procedure, or similar process under subdivision (a)(1) of this section shall not be a condition precedent to bringing an action in Superior Court under subdivision (a)(2) of this section.
3. No later than July 1, 2005, all hospitals as defined in 18 V.S.A. § 1902(1) shall revise their internal processes referred to in subdivision (a)(1) to include and be consistent with ANCC Magnet Recognition Program standards that support the improvement of quality patient care and professional nursing practice.
4. If the court finds that the employer has violated subsection 507(b) of this title, the court shall order, as appropriate:
   1. reinstatement of the employee, including employment benefits, seniority, and same or equivalent position, shift schedule, or hours worked as the employee had before the retaliatory action;
   2. payment of back pay, lost wages, benefits, and other remuneration;
   3. any appropriate injunctive relief;
   4. compensatory damages;
   5. punitive damages;
   6. attorney's fees; or
   7. any other appropriate relief.

      Added 2003, No. 134 (Adj. Sess.), § 2.

§ 509. Notice.

1. No later than December 1, 2004, the Commissioner of Labor shall develop and distribute to each employer a standard notice as provided in this section. Each notice shall be in clear and understandable language and shall include:
   1. a summary of this subchapter;
   2. that an employee, in order to receive the protections of this subchapter, must report, pursuant to subsection 507(c) of this title, to the employer, to the supervisor, or to the person designated to receive notifications; and
   3. a space for the name, title, and contact information of the person to whom the employee must make a report under subsection 507(c) of this title.
2. No later than January 1, 2005, each employer shall post the notice in the employer's place of business to inform the employees of their protections and obligations under this subchapter. The employer shall post the notice in a prominent and accessible location in the workplace. The employer shall indicate on the notice the name or title of the individual the employer has designated to receive notifications pursuant to subsection 507(c) of this title.
3. An employer who violates this section by not posting the notice as required is liable for a civil fine of $100.00 for each day of willful violation.

   Added 2003, No. 134 (Adj. Sess.), § 2; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

§ 511. Definitions.

As used in this subchapter:

1. "Applicant for employment" means an individual seeking or being sought for employment with an employer.
2. "Designated laboratory" means a laboratory designated by the Department of Health under section 518 of this title.
3. "Drug" means a drug listed or classified by the U.S. Drug Enforcement Administration as a Schedule I drug, or its metabolites, and alcohol.  It shall also mean other drugs or their metabolites which are likely to cause impairment of the individual on the job, which are: amitriptyline, amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine, doxepin, glutethimide, hydromorphone, imipramine, meperidine, methadone, methaqualone, opiates, oxycodone, pentazocine, phenytoin, phencyclidine, phenothiazines, and propoxyphene. In addition, the Commissioner of Health may, pursuant to 3 V.S.A. chapter 25, add drugs to this list not recognized as being commonly abused and likely to cause impairment of the employee on the job as of May 22, 1987.
4. "Drug test" means the procedure of taking and analyzing body fluids or materials from the body for the purpose of detecting the presence of a regulated drug as defined in 18 V.S.A. chapter 84 or a drug as defined in subdivision (3) of this section.
5. "Employee" means any person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.
6. "Employer" means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this State, which has one or more individuals performing services for it within this State, or which has offered or may offer employment to one or more individuals.
7. "Employment agency" means a person who undertakes, with or without compensation, to procure, refer, recruit, or place for an employer or person, the opportunity to work for an employer.
8. "Collector" means an individual certified by a U.S. Health and Human Services approved collector certification program for each type of specimen to be collected. A "collector" shall be recertified every three years and may not be an employee of the employer for the purposes of performing a drug test based on probable cause.

   Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 1, eff. May 1, 2002.

§ 512. Drug testing of applicants; prohibitions; exceptions.

1. General prohibition.  Except as provided in subsection (b) of this section, an employer or an employment agency shall not, as a condition of employment, do any of the following:
   1. request or require that an applicant for employment take or submit to a drug test;
   2. administer or attempt to administer a drug test to an applicant for employment; or
   3. request or require that an applicant for employment consent, directly or indirectly, to a practice prohibited under this subchapter.
2. Exception.  An employer may require an applicant for employment to submit to a drug test only if all of the following conditions are met:
   1. Conditional offer of employment.  The applicant has been given an offer of employment conditioned on the applicant receiving a negative test result.
   2. Notice.  The applicant received written notice of the drug testing procedure and a list of the drugs to be tested. The notice shall also state that therapeutic levels of medically-prescribed drugs tested will not be reported. The notice required under this subdivision may not be waived by the applicant.
   3. Administration.  The drug test is administered in accordance with section 514 of this title.

      Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 2, eff. May 1, 2002.

§ 513. Drug testing of employees; prohibitions; exceptions.

1. General prohibition.  Except as provided in subsection (c) of this section, an employer shall not, as a condition of employment, promotion, or change of status of employment, or as an expressed or implied condition of a benefit or privilege of employment, do any of the following:
   1. request or require that an employee take or submit to a drug test;
   2. administer or attempt to administer a drug test to an employee; or
   3. request or require that an employee consent, directly or indirectly, to a practice prohibited under this subchapter.
2. Random or company-wide tests.  An employer shall not request, require, or conduct random or company-wide drug tests except when such testing is required by federal law or regulation.
3. Exception.  Notwithstanding the prohibition in subsection (a) of this section, an employer may require an individual employee to submit to a drug test if all the following conditions are met:
   1. Probable cause.  The employer or an agent of the employer has probable cause to believe the employee is using or is under the influence of a drug on the job.
   2. Employee assistance program.  The employer has available for the employee tested a bona fide rehabilitation program for alcohol or drug abuse and such program is provided by the employer or is available to the extent provided by a policy of health insurance or under contract by a nonprofit hospital service corporation.
   3. Employee may not be terminated.  The employee may not be terminated if the test result is positive and the employee agrees to participate in and then successfully completes the employee assistance program; however, the employee may be suspended only for the period of time necessary to complete the program, but in no event longer than three months.  The employee may be terminated if, after completion of an employee assistance program, the employer subsequently administers a drug test in compliance with subdivisions (1) and (4) of this subsection and the test result is positive.
   4. Administration of test.  The drug test is administered in accordance with section 514 of this title.

      Added 1987, No. 61 , § 1, eff. Sept. 1, 1987.

§ 514. Administration of tests.

An employer may request an applicant for employment or an employee to submit to a drug test pursuant to this subchapter, provided the drug testing is performed in compliance with all the following requirements:

1. Drugs to be tested.  The test shall be administered only to detect the presence of alcohol or drugs, as defined in subdivision 511(3) of this title, at nontherapeutic levels.
2. Written policy.  The employer shall provide all persons tested with a written policy that identifies the circumstances under which persons may be required to submit to drug tests, the particular test procedures, the drugs that will be screened, a statement that over-the-counter medications and other substances may result in a positive test and the consequences of a positive test result.  The employer's policy shall incorporate all provisions of this section.
3. Blood samples.  An employer may not request or require that a blood sample be drawn for the purpose of administering a drug test.
4. Designated laboratory.  The employer shall use only a laboratory designated by the Department of Health.
5. Chain of custody.  The collector shall establish a chain of custody procedure for both sample collection and testing that will assure the anonymity of the individual being tested and verify the identity of each sample and test result.
6. Urinalysis procedure.  If a urinalysis procedure is used to screen for drugs, the employer shall:
   1. require the laboratory performing the test to confirm any sample that tests positive by testing the sample by gas chromatography with mass spectrometry or an equivalent scientifically accepted method that provides quantitative data about the detected drug or drug metabolites; and
   2. provide the person tested with an opportunity, at his or her request and expense, to have a blood sample drawn at the time the urine sample is provided, and preserved in such a way that it can be tested later for the presence of drugs.
7. Laboratory reports.  A laboratory may report that a urine sample is positive only if both the initial test and confirmation test are positive for the particular drug. Test results shall only be provided by written report in accordance with subdivision (9) of this section.
8. Negative test results.  The detection of a drug at a therapeutic level as defined by the Commissioner of Health shall be reported as a negative test result.  The laboratory's report shall not contain any information indicating the presence of a drug at a therapeutic level as defined by the Commissioner.
9. Information to be supplied.  The laboratory shall provide the medical review officer with a written report of the drug test result. The medical review officer shall review the report, and discuss the results and options available with the individual tested. The written report shall include all of the following information:
   1. the unique identifier code of the person tested;
   2. the type of test conducted for both initial screening and confirmation;
   3. the results of each test;
   4. the detection level, meaning the cut-off or measure used to distinguish positive and negative samples, on both the initial screening and confirmation procedures;
   5. the name and address of the laboratory; and
   6. any other information provided by the laboratory concerning that person's test.
10. Preservation of samples.  The collector shall ensure that a portion of any positive sample is preserved in a condition that will permit accurate retesting for a period of not less than 90 days after the person tested receives the result.
11. Medical review officer.  The employer shall contract with or employ a certified medical review officer who shall be a licensed physician with knowledge of the medical use of prescription drugs and the pharmacology and toxicology of illicit drugs. The medical review officer shall review and evaluate all drug test results, assure compliance with this section and sections 515 and 516 of this title, report the results of all tests to the individual tested, and report only confirmed drug test results to the employer.
12. Collector.  The employer shall designate a collector to collect specimens from job applicants and employees. The collector may be an employee for the purposes of collecting specimens from job applicants. The collector may not be an employee for the purposes of collecting specimens from employees for drug testing based on probable cause.

    Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 3, eff. May 1, 2002.

§ 515. Positive test results; opportunity to retest.

1. A medical review officer shall contact personally an employee or applicant who has a positive test result and explain the results and why the results may not be accurate.
2. The medical review officer shall provide any applicant or employee who has a positive test result with an opportunity to retest a portion of the sample at an independent laboratory at the expense of the person tested and shall consider the results of the retest.

   Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 4, eff. May 1, 2002.

§ 516. Confidentiality.

1. Any health care information about an individual to be tested shall be collected only by a medical review officer. This information shall be confidential and shall not be released to anyone except the individual tested, and may not be obtained by court order or process, except as provided in this subchapter. In addition, a medical review officer shall not reveal the identity of an individual being tested to any person, including the laboratory.
2. Employers, medical review officers, laboratories, and the agents of any of these, who receive or have access to information about drug test results, shall keep all information confidential. Release of such information under any other circumstance shall be solely pursuant to a written consent form signed voluntarily by the person tested, except where such release is compelled by a court of competent jurisdiction in connection with an action brought under this subchapter.
3. If information about drug test results is released contrary to the provisions of this subchapter, it shall be inadmissible as evidence in any judicial or quasi-judicial proceeding, except in a court of competent jurisdiction in connection with an action brought under this subchapter.

   Added 1987, No. 61 , § 1, eff. Sept. 1, 1987; amended 2001, No. 92 (Adj. Sess.), § 5, eff. May 1, 2002; 2015, No. 23 , § 12.

§ 517. Employer's authority.

This subchapter shall not restrict an employer's authority to prohibit the nonprescribed use of drugs or alcohol during work hours, or restrict an employer's authority to discipline, suspend, or dismiss an employee for being under the influence of drugs or alcohol during work hours, except as that authority is restricted under subsection 513(c)(3) of this title in reference to participation in an employee assistance program or suspension.

Added 1987, No. 61 , § 1, eff. Sept. 1, 1987.

§ 518. Designated laboratory; rule making authority of the Commissioner.

1. The Department of Health shall designate laboratories to test body fluids or materials for drugs.  Such laboratories must be able to document competency in regard to personnel, quality assurance programs, methodology and equipment, on site confirmation of positive screening tests, security, confidentiality, and expert testimony.
2. A laboratory that fails to comply with the provisions of this subchapter relating to the confirmation and reporting of test information and the release of confidential information shall lose its designation under this subsection.
3. The Commissioner of Health shall adopt rules pursuant to 3 V.S.A. chapter 25 establishing nontherapeutic levels of therapeutic drugs by establishing a range of values considering average medical use for each particular drug or metabolite authorized to be tested under this subchapter.

   Added 1987, No. 61 .

§ 519. Enforcement.

1. Private right of action.  An applicant or employee aggrieved by a violation of this subchapter may bring a civil action for injunctive relief, damages, court costs, and attorney's fees.
2. Burden of proof.  In a private right of action alleging that an employer has violated this subchapter, the employer has the burden of proving that the requirements of sections 513, 514, and 516 of this title have been satisfied.  In any civil action alleging that a laboratory has violated the reporting or confidentiality sections of this subchapter, the laboratory shall have the burden of proving that the requirements of sections 514 and 516 of this title have been satisfied.
3. State action to obtain civil penalty.  A person who violates any provision of this subchapter shall be subject to a civil penalty of not less than $500.00 nor more than $2,000.00.
4. State action to obtain criminal penalty.  A person who knowingly violates any provision of this subchapter shall be fined not less than $500.00 nor more than $1,000.00 or shall be imprisoned not more than six months, or both.

   Added 1987, No. 61 , § 1, eff. Sept. 1, 1987.

§ 520. Repealed. 2017, No. 74, § 142.

§ 561. Health coverage status discrimination prohibited.

1. For the purposes of this section:
   1. "Employee" shall have the same meaning as in section 2002 of this title.
   2. "Employer" shall have the same meaning as in section 2002 of this title.
2. 1. No employer or employment agency or agent of either shall inquire about the health coverage status of a job applicant or in any way discriminate among applicants or employees on the basis of health coverage status. (b) (1)  No employer or employment agency or agent of either shall inquire about the health coverage status of a job applicant or in any way discriminate among applicants or employees on the basis of health coverage status.
   2. Nothing in this section shall prevent:
      1. an employer, employment agency, or agent from informing an applicant about the employer's health coverage benefits; or
      2. an employer from inquiring about the health coverage status of an employee to enable the employer to determine the number of uncovered employees pursuant to chapter 25 of this title, provided that the inquiry conforms to the employer obligations in chapter 25 of this title.
3. Any person aggrieved by a violation of the provisions of this subchapter may bring an action in Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.

   Added 2007, No. 70 , § 28.

§§ 501-513a. Repealed. 1973, No. 213 (Adj. Sess.), § 3, eff. April 3, 1974.

§§ 521-526. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

§§ 531, 532. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

§§ 541-543. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

§§ 551-554. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

§ 601. Definitions.

Unless the context otherwise requires, words and phrases used in this chapter shall be construed as follows:

1. "Brother" and "sister" includes a stepbrother and stepsister, half-brother and half-sister, and a brother and sister by adoption, but does not include a married brother or a married sister unless dependent.
2. "Child" includes a stepchild, adopted child, posthumous child, grandchild, and a child for whom parentage has been established pursuant to 15 V.S.A. chapter 5, but does not include a married child unless the child is a dependent.
3. "Employer" includes any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer, and includes the owner or lessee of premises or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workers there employed. If the employer is insured, "employer" includes the employer's insurer so far as applicable. A person is not deemed to be an "employer" for the purposes of this chapter as the result of entering into a contract for services or labor with an individual who has knowingly and voluntarily waived coverage of this chapter pursuant to subdivision (14)(F) of this section.
4. "Employment" includes public employment, and, in the case of private employers, includes all employment in any trade or occupation notwithstanding that an employer may be a nonprofit corporation, institution, association, partnership, or proprietorship.
5. "Grandchild" includes a child of an adopted child and a child of a stepchild, but does not include a stepchild of a child, a stepchild of a stepchild, a stepchild of an adopted child, or a married grandchild unless dependent.
6. "Grandparent" includes a parent of a parent by adoption, but does not include a parent of a stepparent, a stepparent of a parent, or a stepparent of a stepparent.
7. "Injury" and "personal injury" includes occupational diseases, death resulting from injury within two years and includes injury to and cost of acquiring and replacement of prosthetic devices, hearing aids, and eye glasses.
8. "Insurance carrier" includes any corporation from which an employer has obtained workers' compensation insurance or guaranty insurance in accordance with the provisions of this chapter.
9. "Parent" includes a stepparent and a parent by adoption.
10. "Partial disability" may be held to include diminished ability to obtain employment owing to disfigurement resulting from an injury.
11. "Personal injury by accident arising out of and in the course of employment" includes an injury caused by the willful act of a third person directed against an employee because of that employment.
    1. In the case of constables, chiefs of police, police officers, rescue or ambulance workers, and volunteer reserve police officers in any city, town, or incorporated village, disability or death from a heart injury or heart disease incurred or aggravated and proximately caused by service in the line of duty and that becomes symptomatic within 72 hours from the date of last service in the line of duty shall be presumed to be incurred in the line of duty.
    2. In the case of firefighters, as defined in 20 V.S.A. § 3151(3) and (4), disability or death from heart injury or heart disease that becomes symptomatic within 72 hours of service in the line of duty shall be presumed to be compensable.
    3. "Line of duty," as applied to firefighters and rescue and ambulance workers means one or more of the following:

       (ii) Similar service in another town or district to which the department has been called for firefighting or emergency purposes.

       (iii) Service under orders of any department officer in any other emergency to which the department is called in the town or district where the department is established.

       (iv) Activities authorized by the department for the purpose of raising funds for the department.

    4. "Line of duty" as applied to constables, police officers, or volunteer reserve police officers means either or both of the following:
       1. Service as a police officer in answer to a complaint lodged with the department, including going to, returning from, and investigating the complaint or disorder.
       2. Service under orders from the department or in any emergency for which the employee serves as constable, police officer, or volunteer reserve police officer.
    5. In the case of a firefighter, as defined in 20 V.S.A. § 3151(3) and (4), who dies or has a disability from a cancer listed in subdivision (iii) of this subdivision (E), the firefighter shall be presumed to have had the cancer as a result of exposure to conditions in the line of duty, unless it is shown by a preponderance of the evidence that the cancer was caused by nonservice-connected risk factors or nonservice-connected exposure, provided:
       1. 1. the firefighter completed an initial and any subsequent cancer screening evaluations as recommended by the American Cancer Society based on the age and sex of the firefighter prior to becoming a firefighter or within two years of July 1, 2007, and the evaluation indicated no evidence of cancer;
          2. the firefighter was engaged in firefighting duties or other hazardous activities over a period of at least five years in Vermont prior to the diagnosis; and
          3. the firefighter is under 65 years of age.
       2. The presumption shall not apply to any firefighter who has used tobacco products at any time within 10 years of the date of diagnosis.
       3. The disabling cancer shall be limited to leukemia, lymphoma, or multiple myeloma, and cancers originating in the bladder, brain, colon, gastrointestinal tract, kidney, liver, pancreas, skin, or testicles.
    6. A firefighter who is diagnosed with cancer within 10 years of the last active date of employment as a firefighter shall be eligible for benefits under this subdivision. The date of injury shall be the date of the last injurious exposure as a firefighter.
    7. It is recommended that fire departments maintain incident report records for at least 10 years.
    8. 1. In the case of firefighters and members of a rescue or an ambulance squad, disability or death resulting from lung disease or an infectious disease either one of which is caused by aerosolized airborne infectious agents or blood-borne pathogens and acquired after a documented occupational exposure in the line of duty to a person with an illness shall be presumed to be compensable, unless it is shown by a preponderance of the evidence that the disease was caused by nonservice-connected risk factors or nonservice-connected exposure. The presumption of compensability shall not be available if the employer offers a vaccine that is refused by the firefighter or rescue or ambulance worker and the firefighter or rescue or ambulance worker is subsequently diagnosed with the particular disease for which the vaccine was offered, unless the firefighter or rescue or ambulance worker's physician deems that the vaccine is not medically safe or appropriate for the firefighter or rescue or ambulance worker. (H) (i)  In the case of firefighters and members of a rescue or an ambulance squad, disability or death resulting from lung disease or an infectious disease either one of which is caused by aerosolized airborne infectious agents or blood-borne pathogens and acquired after a documented occupational exposure in the line of duty to a person with an illness shall be presumed to be compensable, unless it is shown by a preponderance of the evidence that the disease was caused by nonservice-connected risk factors or nonservice-connected exposure. The presumption of compensability shall not be available if the employer offers a vaccine that is refused by the firefighter or rescue or ambulance worker and the firefighter or rescue or ambulance worker is subsequently diagnosed with the particular disease for which the vaccine was offered, unless the firefighter or rescue or ambulance worker's physician deems that the vaccine is not medically safe or appropriate for the firefighter or rescue or ambulance worker.
       2. In the case of lung disease the presumption of compensability shall not apply to any firefighter or rescue or ambulance worker who has used tobacco products at any time within 10 years of the date of diagnosis.
       3. A firefighter or rescue or ambulance worker shall have been diagnosed within 10 years of the last active date of employment as a firefighter or rescue or ambulance worker.
       4. As used in this subdivision, "exposure" means contact with infectious agents such as bodily fluids through inhalation, percutaneous inoculation, or contact with an open wound, nonintact skin, or mucous membranes, or other potentially infectious materials that may result from the performance of an employee's duties. Exposure includes:
          1. Percutaneous exposure.   Percutaneous exposure occurs when blood or bodily fluid is introduced into the body through the skin, including by needle sticks, cuts, abrasions, broken cuticles, and chapped skin.
          2. Mucocutaneous exposure.   Mucocutaneous exposure occurs when blood or bodily fluids come in contact with a mucous membrane.
          3. Airborne exposure.   Airborne exposure means contact with an individual with a suspected or confirmed case of airborne disease or contact with air containing aerosolized airborne disease.
    9. 1. In the case of police officers, rescue or ambulance workers, or firefighters, post-traumatic stress disorder that is diagnosed by a mental health professional shall be presumed to have been incurred during service in the line of duty and shall be compensable, unless it is shown by a preponderance of the evidence that the post-traumatic stress disorder was caused by nonservice-connected risk factors or nonservice-connected exposure. (I) (i)  In the case of police officers, rescue or ambulance workers, or firefighters, post-traumatic stress disorder that is diagnosed by a mental health professional shall be presumed to have been incurred during service in the line of duty and shall be compensable, unless it is shown by a preponderance of the evidence that the post-traumatic stress disorder was caused by nonservice-connected risk factors or nonservice-connected exposure.
       2. A police officer, rescue or ambulance worker, or firefighter who is diagnosed with post-traumatic stress disorder within three years of the last active date of employment as a police officer, rescue or ambulance worker, or firefighter shall be eligible for benefits under this subdivision (11).
       3. As used in this subdivision (11)(I):
          1. "Firefighter" means a firefighter as defined in 20 V.S.A. § 3151(3) and (4).
          2. "Mental health professional" means a person with professional training, experience, and demonstrated competence in the treatment and diagnosis of mental conditions, who is certified or licensed to provide mental health care services and for whom diagnoses of mental conditions are within his or her scope of practice, including a physician, nurse with recognized psychiatric specialties, psychologist, clinical social worker, mental health counselor, or alcohol or drug abuse counselor.
          3. "Police officer" means a law enforcement officer who has been certified by the Vermont Criminal Justice Council pursuant to 20 V.S.A. chapter 151.
          4. "Rescue or ambulance worker" means ambulance service, emergency medical personnel, first responder service, and volunteer personnel as defined in 24 V.S.A. § 2651 .
    10. 1. A mental condition resulting from a work-related event or work-related stress shall be considered a personal injury by accident arising out of and in the course of employment and be compensable if it is demonstrated by the preponderance of the evidence that: (J) (i)  A mental condition resulting from a work-related event or work-related stress shall be considered a personal injury by accident arising out of and in the course of employment and be compensable if it is demonstrated by the preponderance of the evidence that:
           1. the work-related event or work-related stress was extraordinary and unusual in comparison to pressures and tensions experienced by the average employee across all occupations; and
           2. the work-related event or work-related stress, and not some other event or source of stress, was the predominant cause of the mental condition.
        2. A mental condition shall not be considered a personal injury by accident arising out of and in the course of employment if it results from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or similar action taken in good faith by the employer.
12. "Public employment" means the following:
    1. all officers and State employees, as defined in 3 V.S.A. § 1101 , of all State agencies, departments, divisions, boards, commissions, and institutions, and the Vermont Historical Society;
    2. full-time State's Attorneys and full-time Deputy State's Attorneys;
    3. officers and employees of the General Assembly, provided however, that members of the General Assembly shall be considered as public employees only for the periods that the General Assembly is in session or while engaged in duties for which compensation is provided by law;
    4. members of the Military Forces of the State of Vermont while in the active service of this State ordered by competent authority;
    5. employees of towns, town school districts, incorporated school districts, incorporated villages, and fire districts;
    6. road commissioners or selectboard members while actually engaged in highway maintenance or construction;
    7. policemen, firemen, and other municipal employees entitled to pensions;
    8. all teachers, as defined in 16 V.S.A. § 1931 . No municipality may vote to exclude teachers from the applicability of this chapter;
    9. personnel who are engaged by the State of Vermont in forest fire suppression under the provisions of the Northeastern Forest Fire Protection Compact, while in the active service of this State ordered by competent authority;
    10. volunteer reserve police officers of towns and incorporated villages while acting in the line of duty, when the selectboard members or trustees vote to have those officers covered by this chapter;
    11. other municipal workers, including volunteer firefighters and rescue and ambulance squads while acting in any capacity under the direction and control of the fire department or rescue and ambulance squads;
    12. members of any regularly organized private volunteer fire department while acting in any capacity under the direction and control of the fire department;
    13. members of any regularly organized private volunteer rescue or ambulance squad while acting in any capacity under the direction and control of the rescue or ambulance squad;
    14. sheriffs, full-time deputy sheriffs and county clerks, judges of probate, probate registers, and clerks paid by the State of Vermont;
    15. the term "public employment" shall not include the following:
        1. public officials who are elected by popular vote, except those mentioned in this subdivision (12);
        2. assistant judges of the Superior Court, high bailiffs, county treasurers, or any of their deputies or subordinates;
        3. prisoners or wards of the State;
        4. any person engaged by the State under retainer or special agreement.
13. "Wages" includes bonuses and the market value of board, lodging, fuel, and other advantages that can be estimated in money and that the employee receives from the employer as a part of his or her remuneration; but does not include any sum paid by the employer to his or her employee to cover any special expenses entailed on the employee by the nature of his or her employment.
14. "Worker" and "employee" means an individual who has entered into the employment of, or works under contract of service or apprenticeship with, an employer. Any reference to a worker who has died as the result of a work injury shall include a reference to the worker's dependents, and any reference to a worker who is a minor or incompetent shall include a reference to the minor's committee, guardian, or next friend. The term "worker" or "employee" does not include:
    1. An individual whose employment is of casual nature, and not for the purpose of the employer's trade or business.
    2. An individual engaged in amateur sports even if an employer contributes to the support of such sports.
    3. An individual engaged in agriculture or farm employment for an employer whose aggregate payroll is less than $10,000.00 in a calendar year, unless the employer notifies the Commissioner that the employer wishes to be included within the provisions of this chapter; the existence of a contract of insurance shall be considered sufficient notice.
    4. A member of the employer's family dwelling in the employer's house; but, if in any contract of insurance the wages or salary of such a member of the employer's family is included in the payroll on which the premium is based, then that family member shall, in the event of sustaining an injury arising out of and in the course of employment be deemed an employee and compensated accordingly.
    5. Any individual engaged in any type of service in or about a private dwelling unless the employer notifies the Commissioner that the employer wishes to be included within the provisions of this chapter; the existence of a contract of insurance shall be considered sufficient notice.
    6. The sole proprietor or partner owner or partner owners of an unincorporated business provided:
       1. The individual performs work that is distinct and separate from that of the person with whom the individual contracts.
       2. The individual controls the means and manner of the work performed.
       3. The individual holds him- or herself out as in business for him- or herself.
       4. The individual holds him- or herself out for work for the general public and does not perform work exclusively for or with another person.
       5. The individual is not treated as an employee for purposes of income or employment taxation with regard to the work performed.
       6. The services are performed pursuant to a written agreement or contract between the individual and another person, and the written agreement or contract explicitly states that the individual is not considered to be an employee under this chapter, is working independently, has no employees, and has not contracted with other independent contractors. The written contract or agreement shall also include information regarding the right of the individual to purchase workers' compensation insurance coverage and the individual's election not to purchase that coverage. However, if the individual who is party to the agreement or contract under this subdivision is found to have employees, those employees may file a claim for benefits under this chapter against either or both parties to the agreement.
    7. An individual who performs services as a real estate broker or real estate salesperson, provided:
       1. the individual is licensed to broker or sell real estate pursuant to 26 V.S.A. chapter 41;
       2. all the individual's compensation from performing real estate broker or sales services is based on commissions from sales production or results and is not based on time worked or an hourly wage;
       3. the services are performed pursuant to a written agreement or contract between the individual and the real estate sales or broker business or another person with whom the individual is affiliated or associated and the written agreement or contract explicitly states that the individual is not considered to be an employee under this chapter and is not eligible for coverage under this chapter; and
       4. the individual is not treated as an employee for the purposes of federal income and employment taxation with regard to the real estate broker or sales services performed.
    8. With the approval of the Commissioner, a corporation or a limited liability company (L.L.C.) may elect to file exclusions from the provisions of this chapter. A corporation or an L.L.C. may elect to exclude up to four executive officers or managers or members from coverage requirements under this chapter. If all officers of the corporation or all managers or members of an L.L.C. make such election, receive approval, and the business has no employees, the corporation or L.L.C. shall not be required to purchase workers' compensation coverage. If after election, the officer, manager, or member experiences a personal injury and files a claim under this chapter, the employer shall have all the defenses available in a personal injury claim. However, this election shall not prevent any other individual, other than the individual excluded under this section, found to be an employee of the corporation or L.L.C. to recover workers' compensation from either the corporation, L.L.C., or the statutory employer.
15. "Average weekly wages" means the average weekly wages as computed under section 650 of this title.
16. "Average compensation" means the current "average weekly wage" under section 1338 of this title, determined previous to the first day of July preceding the date of injury or when compensation is awarded, whichever is later.
17. [Repealed.]
18. "Maximum weekly compensation" shall mean a sum of money equal to 150 percent of the average compensation, rounded to the next higher dollar.
19. "Minimum weekly compensation" shall mean a sum of money equal to 50 percent of the average compensation, rounded to the next higher dollar. However, solely for the purposes of determining permanent total or partial disability compensation where the employee's average weekly wage computed under section 650 of this title is lower than the minimum weekly compensation, the employee's weekly compensation shall be the full amount of the employee's average weekly wages. For the purpose of determining temporary total or temporary partial disability compensation where the employee's average weekly wage computed under section 650 of this title is lower than the minimum weekly compensation, the employee's weekly compensation shall be 90 percent of the employee's average weekly wage prior to any cost of living adjustment calculated under subsection 650(d) of this title.
20. "Commissioner" means the Commissioner of Labor or the Commissioner's designee.
21. [Repealed.]
22. "Health care provider" means a person, partnership, corporation, facility, or institution licensed or certified or authorized by law to provide professional health care service to an individual during the individual's medical care, treatment, or confinement.
23. "Occupational disease" means a disease that results from causes and conditions characteristic of and peculiar to a particular trade, occupation, process, or employment, and to which an employee is not ordinarily subjected or exposed outside or away from the employment and arises out of and in the course of the employment.
24. "Evidence that reasonably supports an action" means, for the purposes of section 643a and subsections 650(e) and 662(b) of this title, relevant evidence that a reasonable mind might accept as adequate to support a conclusion that must be based on the record as a whole, and take into account whatever in the record fairly detracts from its weight.
25. "Medical bill" means any claim, bill, or request for payment from a health care provider or employee for all or any portion of health care services provided to the employee for an injury for which the employee has filed a claim under this chapter.
26. "Denied medical payment" or "medical bill denial" means a refusal to pay a medical bill based on the employer or insurance carrier asserting, supported by reasonable evidence, any one or more of the following:
    1. The employer or insurance carrier was not provided with sufficient information to determine the payer liability.
    2. The employer or insurance carrier was not provided with reasonable access to information needed to determine the liability or basis for payment of the claim.
    3. The employer or insurance carrier has no liability to pay a medical bill under the provisions of this chapter.
    4. The service was not reasonable or medically necessary.
    5. Another payer is liable.
    6. Another legal or factual ground for nonpayment.
27. "Medically necessary care" means health care services for which an employer is otherwise liable under the provisions of this chapter, including diagnostic testing, preventive services, and aftercare, that are appropriate, in terms of type, amount, frequency, level, setting, and duration, to the injured employee's diagnosis or condition. Medically necessary care must be informed by generally accepted medical or scientific evidence and consistent with generally accepted practice parameters as recognized by health care professionals in the same specialties as typically provide the procedure or treatment, or diagnose or manage the medical condition; must be informed by the unique needs of each individual patient and each presenting situation; and must:
    1. help restore or maintain the injured employee's health; or
    2. prevent deterioration of or palliate the injured employee's condition; or
    3. prevent the reasonably likely onset of a health problem or detect an incipient problem.
28. "Aerosolized airborne infectious agents" means microbial aerosols that can enter the human body, usually through the respiratory tract, and cause disease, including mycobacterium tuberculosis, meningococcal meningitis, varicella zoster virus, diphtheria, mumps, pertussis, pneumonic plague, rubella, severe acute respiratory syndrome, anthrax, and novel influenza.
29. "Blood-borne pathogens" means pathogenic microorganisms that are present in human blood and can cause disease in humans, including anthrax, hepatitis B virus (HBV), hepatitis C virus (HCV), human immunodeficiency virus (HIV), rabies, vaccinia, viral hemorrhagic fevers, and methicillin-resistant staphylococcus aureus.
30. "Bodily fluids" means blood and bodily fluids containing blood or other potentially infectious materials as defined in the Vermont Occupational Safety and Health Administration Bloodborne Pathogen Standard (1910.1030). Bodily fluids also include respiratory, salivary, and sinus fluids, including droplets, sputum and saliva, mucus, and other fluids through which infectious airborne organisms can be transmitted between persons.

    Amended 1959, No. 222 ; 1965, No. 169 ; 1967, No. 122 , § 1; 1969, No. 186 (Adj. Sess.), § 1; 1971, No. 241 (Adj. Sess.), §§ 1, 2; 1973, No. 64 , § 1; 1973, No. 70 , § 1; 1975, No. 177 (Adj. Sess.), § 1; 1975, No. 201 (Adj. Sess.); 1977, No. 182 (Adj. Sess.), §§ 1, 21, eff. May 3, 1978; 1981, No. 39 ; 1981, No. 165 (Adj. Sess.), §§ 1, 3, 4; 1981, No. 204 (Adj. Sess.), §§ 1, 2; 1983, No. 121 (Adj. Sess.), § 1, eff. March 28, 1984; 1985, No. 194 (Adj. Sess.), §§ 1, 2; 1987, No. 183 (Adj. Sess.), § 13; 1987, No. 189 (Adj. Sess.); 1993, No. 23 , §§ 1, 2, eff. May 19, 1993; 1993, No. 225 (Adj. Sess.), §§ 1, 2; 1995, No. 180 (Adj. Sess.), § 38a; 1999, No. 41 , §§ 2, 3; 2003, No. 132 (Adj. Sess.), §§ 4, 14, eff. May 26, 2004; 2005, No. 69 , § 1; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 108 (Adj. Sess.), § 2; 2005, No. 209 (Adj. Sess.), § 32; 2005, No. 212 (Adj. Sess.), § 11, eff. May 29, 2006; 2007, No. 42 , § 2; 2009, No. 61 , § 26; 2011, No. 133 (Adj. Sess.), § 3; 2011, No. 155 (Adj. Sess.), § 44; 2013, No. 86 , § 1; 2013, No. 96 (Adj. Sess.), § 136; 2013, No. 161 (Adj. Sess.), § 72; 2017, No. 80 , § 23; 2017, No. 113 (Adj. Sess.), § 147.

§ 602. Process and procedure.

1. All process and procedure under the provisions of this chapter shall be as summary and simple as reasonably may be.  The Commissioner may make rules not inconsistent with such provisions for carrying out the same and shall cause to be printed and furnished, free of charge, to any employer or employee such forms as he or she deems necessary to facilitate or promote the efficient administration of such provisions.
2. The Commissioner shall determine the form in which reports are filed and what shall constitute a signature on the reports, including those filed in other than paper form, such as electronically or over telephone lines.
3. Any communication from an employer or an insurer to a claimant that is not otherwise required to be provided on a form prescribed by the Commissioner must include a statement advising the claimant that he or she should contact the Department of Labor's Workers' Compensation Division to determine any right to object or appeal, as provided by law, and to seek information from the Department on the process and procedures.

   Amended 2009, No. 146 (Adj. Sess.), § B17; 2013, No. 199 (Adj. Sess.), § 61, eff. June 24, 2014.

§ 603. Witnesses, oaths, books, papers, records.

1. So far as it is necessary in his or her examinations and investigations and in the determination of matters within his or her jurisdiction, the Commissioner shall have power to subpoena witnesses, administer oaths, and to demand the production of books, papers, records, and documents for his or her examination.
2. The Superior Court, a justice of the Supreme Court, or a Superior judge shall have power to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of such books, papers, records, and documents before the Commissioner, and in the case of a corporation, the provisions of 11 V.S.A. §§ 441-444 shall apply.

   Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

§ 604. Manner of trying causes; evidence.

The Commissioner shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure except as provided in this chapter, but he or she may make such investigation or inquiry or conduct such hearing or trial in such manner as to ascertain the substantial rights of the parties. Declarations of the deceased employee concerning his or her accident may be received in evidence and shall be sufficient to establish the accident and the injury, if corroborated by circumstances or other evidence.

§ 605. Testimony of person without the State, how taken.

Upon the application of a party in a cause pending before him or her and on such notice to the adverse party or his or her attorney as he or she thinks reasonable, the Commissioner may issue a commission to a person designated by the Commissioner, to take the testimony of a person residing or being without the state. Such testimony shall be taken upon interrogatories settled by order of the Commissioner or upon oral examination, as he or she directs.

§ 606. Determination of questions.

Questions arising under the provisions of this chapter, if not settled by agreement of the parties interested therein with the approval of the Commissioner, shall be determined, except as otherwise provided, by the Commissioner.

§ 607. Decisions; enforcement; appeals.

The decisions of the Commissioner shall be enforceable by the Superior Court under the provisions of section 675 of this title. From such a decision an appeal shall lie in the same manner as other appeals from the Commissioner. However, in no case shall such an appeal operate as a supersedeas or stay unless he, she, or the court to which such appeal is taken shall so order.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

§ 608. Application of chapter when State not an employer.

The provisions of this chapter shall not be construed so as to make the State an employer where it only renders State aid to a municipality or approves of its plans or supervisors.

§ 609. Repealed. 1981, No. 165 (Adj. Sess.), § 7.

§ 610. Election by State as employer.

The provisions of this chapter relating to the State as an employer shall be deemed to be an election by the State where an election is required by the provisions of this chapter.

§ 611. Repealed. 1977, No. 182 (Adj. Sess.), § 22, eff. May 3, 1978.

§§ 612-615. Repealed. 1973, No. 70, § 3.

§ 616. Employments covered.

1. Except as otherwise provided in this section and other provisions of this chapter, this chapter shall apply to all employment in this State, and where provided, to employment outside of the State.
2. This chapter does not apply to employment in any case where the laws of the United States of America provide for compensation, by an employer to his or her employee, for injury or death in employment.  However, if jurisdiction is vested in this State under such laws, this chapter shall apply to the employment.

   Amended 1967, No. 51 ; 1973, No. 70 , § 2.

§ 617. Repealed. 1969, No. 186 (Adj. Sess.), § 2.

§ 618. Compensation for personal injury.

1. 1. If a worker receives a personal injury by accident arising out of and in the course of employment by an employer subject to this chapter, the employer or the insurance carrier shall pay compensation in the amounts and to the person hereinafter specified. The compensation of a person who is under guardianship shall be paid to the person's guardian. (a) (1)  If a worker receives a personal injury by accident arising out of and in the course of employment by an employer subject to this chapter, the employer or the insurance carrier shall pay compensation in the amounts and to the person hereinafter specified. The compensation of a person who is under guardianship shall be paid to the person's guardian.
   2. If the injury occurred while engaged off the premises of the employer in a recreational activity that is available to the employee as part of the employee's compensation package or as an inducement to attract employees, it shall not be considered to have occurred in the course of employment unless the Commissioner finds at least one of the following:
      1. The employer derived substantial benefit from the activity, beyond that of attracting labor or improving employee health and morale.
      2. The activity was reasonably part of the employee's regular duties or undertaken to meet the expectations of the employer.
      3. The activity was undertaken at the request of the employer.
   3. [Repealed.]
2. A worker who receives a personal injury by accident arising out of and in the course of employment with an employer who has failed to comply with section 687 of this title may elect to claim compensation under this chapter or to bring a civil action against the employer for full damages resulting from the work injury. In the civil action the employer has the burden of proving that the injury did not result from the employer's negligence and that the employer's negligence was not the proximate cause of the injury. The employer may not plead as a defense any of the following:
   1. The injury was caused by the negligence of a fellow-employee.
   2. The defense provided under 12 V.S.A. § 1036 unless the negligence was willful and with the intent of causing an injury.
   3. The employee assumed any risk in the employment.
3. A worker shall commence a civil action under subsection (b) of this section within the three-year limitation period as provided in 12 V.S.A. § 512(4) .
4. The acceptance of any payment by an employee for a work injury shall not bar a subsequent election to pursue a civil suit under subsection (b) of this section unless the employee, with knowledge of his or her rights, signs a written agreement waiving the right to pursue a civil action. The agreement shall be filed with and approved by the Commissioner. If the employer fails to pay any amount due and owing under the workers' compensation act, the waiver agreement shall be void and the employee may pursue a civil action.
5. Any employee who prevails in a civil action under subsection (b) of this section shall be entitled to costs, interest from the date of filing the claim, and reasonable attorney's fees.
6. 1. If an injured worker voluntarily consents in writing, the worker may be paid compensation benefits by means of direct deposit or an electronic prepaid benefit card account in accord with the requirements of section 342 of this title. (f) (1)  If an injured worker voluntarily consents in writing, the worker may be paid compensation benefits by means of direct deposit or an electronic prepaid benefit card account in accord with the requirements of section 342 of this title.
   2. The issuer of the card shall comply with all of the requirements, and provide the holder of the card with all of the consumer protections, that apply to a payroll card account under the rules implementing the Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq., as may be amended.
   3. An electronic prepaid benefit card account may be used only for weekly payment of temporary benefits and not for the payment of a lump sum award or for permanent benefits.
   4. The Commissioner, in consultation with the Commissioner of Financial Regulation, may adopt rules to implement this section.

      Amended 1981, No. 165 (Adj. Sess.), § 1; 1997, No. 19 , § 1; 1997, No. 59 , § 34a, eff. June 30, 1997; 1999, No. 85 (Adj. Sess.), § 2, eff. April 19, 2000; 2003, No. 132 (Adj. Sess.), § 9, eff. May 26, 2004; 2013, No. 6 , § 1.