Why Amazon’s updated marijuana drug testing policy could have a ‘multiplier effect’


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With the spread of laws protecting adult use of medical and recreational marijuana, the second largest employer in the United States is changing its tune in drug testing. In a June blog post, Amazon said it would “no longer include marijuana in our comprehensive drug screening program” for jobs not regulated by the US Department of Transportation. Instead, the company said it would treat marijuana use like alcohol use. The announcement was surprising despite Amazon’s position as a trend setter from a business operations perspective, Michael Freeman, partner at Greenspoon Marder, told HR Dive. But he added that the news could have a “multiplier effect” on how other employers handle marijuana testing going forward, given the fact that more and more jurisdictions have implemented marijuana use legislation. Currently, 18 states plus Washington, D.C. have adopted laws that legalize some forms of adult recreational use, according to the National Conference of State Legislatures. States added to the list in 2021 include Connecticut, New Mexico, New York and Virginia. Within some of these laws, states have added provisions that include various forms of protections for job applicants’ use of marijuana. In 2019, Nevada became the first state to ban employers from refusing to hire job applicants—with exceptions for some roles—on the basis of a positive marijuana test. This year, two countries followed suit with similar laws. In February, New Jersey enacted a law stating that employers may not refuse employment and may not take adverse action against employees because of cannabis use or solely because of the presence of cannabis metabolites in an employee’s bodily fluid that results from behavior permitted under state law. In April, neighboring New York State adopted legislation prohibiting employment discrimination against workers based on cannabis use before or after the start of their working hours, outside the employer’s premises and without the use of the employer’s equipment or property. Amazon is not alone in adopting policies that take new laws into account. After passing Virginia’s recreational use legislation this year, the city government of Norfolk, Virginia, has dropped drug testing requirements for many job categories, except for some “safety-sensitive” jobs, local news agency WAVY-TV reported. This approach may spread as employers seek uniformity in their drug testing policies amid a fractured legal landscape, according to Freeman. “We’re starting to see a trend of countries taking these next steps,” he added. ‘Amazon advertising is a way to advance the curve.’ But that doesn’t mean that many employers will forgo drug testing requirements altogether, even for marijuana; Like Amazon, Freeman said, employers will likely need to retain job requirements that are regulated by the Department of Transportation. Many states that have legalized recreational use still allow employers to put in place policies that prohibit such use, both on and off the job. Others demonstrate the ability of employers to put in place policies that help maintain safe workplaces. “Safety will continue to be paramount,” Freeman said, adding that employers across the board may train managers to determine if an employee is under the influence of cannabis, similar to alcohol and other drugs. Even in workplaces that have moved away during the pandemic, employers have continued drug testing systems, labor law experts previously told HR Dive. When asked how an employer might implement a policy change similar to Amazon, Freimann said HR teams may first need to review employee handbooks and policies to determine existing compliance measures and training protocols. From there, employers can decide which jobs they will continue to test protocols for, and which jobs they will not continue to test. Off-duty behavior is likely to be a major consideration; “If someone comes to work and uses marijuana recreationally while out of work, how do we deal with that person?” Freeman said. Additionally, employers need to ensure that the definition of “reasonable skepticism” in their policies is “defined and well understood” within the organization, including during training, he noted. If a manager determines that an employee is impaired by marijuana use, “they should explain why they are reasonably suspicious of doing so,” Freeman explained. Documentation is also important. “Be sure to follow up on oral discussions or emails with notes you can put on file [and] Do things as contemporary as possible,” Freeman said.


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