[US] Potential ‘ripple effect’ of Amazon’s updated marijuana drug testing policy

As laws protecting adult use of both medical and recreational marijuana use continue to be enacted, the US’s second-largest employer is altering its approach to drug testing, HR Dive explores the decision and its implications.

In a June blog post, Amazon said it "will no longer include marijuana in our comprehensive drug screening program" for jobs that are not regulated by the U.S. Department of Transportation. Instead, the company said it would treat marijuana use in the same manner as alcohol use.

Michael Freimann - partner at Greenspoon Marder - told HR Dive that the announcement came as a surprise despite Amazon's trendsetting business operations status. However, he added, the news could have a "ripple effect" on how other employers approach marijuana testing going forward because more and more jurisdictions have implemented marijuana use legislation.

According to the National Conference of State Legislatures 18 states as well as Washington, D.C., have adopted laws legalising some form of adult recreational use. States added to the list in 2021 include Connecticut, New Mexico, New York and Virginia.

Within some of these statutes, states have reportedly added provisions that include various forms of protection for job applicants' use of marijuana. In 2019, Nevada became the first state to prohibit employers from refusing to hire job applicants - with exceptions for some roles - on the basis of a positive marijuana test.

In 2021, two states followed suit with similar laws. In February, New Jersey enacted a law stating that employers may not refuse to hire and may not take adverse employment actions against employees because of cannabis use or solely because of the presence of cannabinoid metabolites in the employee's bodily fluid that results from conduct permitted under state law. 

In April, neighbouring state New York adopted legislation prohibiting employment discrimination against workers based on cannabis use prior to the beginning of or after the conclusion of their work hours, away from the employer's premises and without the use of the employer's equipment or property.

Amazon is not the only employer to adopt policies taking new laws into account. Following the passage of Virginia's recreational use legislation this year, the city government of Norfolk, Virginia, dropped drug testing requirements for many job categories, apart from certain "safety sensitive" positions, according to reporting by local news outlet WAVY-TV.

This new approach may spread as employers look for uniformity in their drug-testing policies in a fractured legal landscape, according to Mr Freimann. "We're starting to see a trend of states taking these next steps," he said. "Amazon's announcement is a way to get ahead of the curve."

However, the change of position does not mean that many employers will drop drug testing requirements altogether, even for marijuana. In common with Amazon, employers will likely need to keep in place requirements for positions regulated by DOT, Mr Freimann said. And many states that have legalised recreational use still permit employers to create policies prohibiting that use, whether on- or off-duty. Others spell out the ability of employers to create policies to help maintain safe workplaces.

"Safety will still be paramount," Mr Freimann said, adding that employers across the board may train managers to identify whether an employee is under the influence of cannabis, similar to their approach to alcohol and other drugs. 

Employment law experts previously told HR Dive that even in workplaces that became remote during the pandemic employers continued drug-testing regimens.

Responding to the question of how an employer could implement a change of policy similar to Amazon’s, Mr Freimann said HR teams may need to first review their employee handbooks and policies to determine existing compliance measures and training protocols. From there, employers can identify which jobs they will continue testing protocols for and which ones they will end.

Off-duty conduct will probably be a key consideration; "If someone did come to work and use marijuana recreationally while they were off-duty, how are we treating that person?" Mr Freimann said.

Employers also need to ensure that the definition of "reasonable suspicion" within their policies "is well-defined and understood" within the organisation, including during training, he noted. If a manager determines that an employee is impaired by marijuana use, "they have to articulate why they have reasonable suspicion to do that," Mr Freimann explained.

Documentation is also important. "Make sure you're following up verbal discussions or emails with memos you can put in the file [and] doing things as contemporaneously as possible," he advised.

Source: HR Dive

(Links and quotes via original reporting)

As laws protecting adult use of both medical and recreational marijuana use continue to be enacted, the US’s second-largest employer is altering its approach to drug testing, HR Dive explores the decision and its implications.

In a June blog post, Amazon said it "will no longer include marijuana in our comprehensive drug screening program" for jobs that are not regulated by the U.S. Department of Transportation. Instead, the company said it would treat marijuana use in the same manner as alcohol use.

Michael Freimann - partner at Greenspoon Marder - told HR Dive that the announcement came as a surprise despite Amazon's trendsetting business operations status. However, he added, the news could have a "ripple effect" on how other employers approach marijuana testing going forward because more and more jurisdictions have implemented marijuana use legislation.

According to the National Conference of State Legislatures 18 states as well as Washington, D.C., have adopted laws legalising some form of adult recreational use. States added to the list in 2021 include Connecticut, New Mexico, New York and Virginia.

Within some of these statutes, states have reportedly added provisions that include various forms of protection for job applicants' use of marijuana. In 2019, Nevada became the first state to prohibit employers from refusing to hire job applicants - with exceptions for some roles - on the basis of a positive marijuana test.

In 2021, two states followed suit with similar laws. In February, New Jersey enacted a law stating that employers may not refuse to hire and may not take adverse employment actions against employees because of cannabis use or solely because of the presence of cannabinoid metabolites in the employee's bodily fluid that results from conduct permitted under state law. 

In April, neighbouring state New York adopted legislation prohibiting employment discrimination against workers based on cannabis use prior to the beginning of or after the conclusion of their work hours, away from the employer's premises and without the use of the employer's equipment or property.

Amazon is not the only employer to adopt policies taking new laws into account. Following the passage of Virginia's recreational use legislation this year, the city government of Norfolk, Virginia, dropped drug testing requirements for many job categories, apart from certain "safety sensitive" positions, according to reporting by local news outlet WAVY-TV.

This new approach may spread as employers look for uniformity in their drug-testing policies in a fractured legal landscape, according to Mr Freimann. "We're starting to see a trend of states taking these next steps," he said. "Amazon's announcement is a way to get ahead of the curve."

However, the change of position does not mean that many employers will drop drug testing requirements altogether, even for marijuana. In common with Amazon, employers will likely need to keep in place requirements for positions regulated by DOT, Mr Freimann said. And many states that have legalised recreational use still permit employers to create policies prohibiting that use, whether on- or off-duty. Others spell out the ability of employers to create policies to help maintain safe workplaces.

"Safety will still be paramount," Mr Freimann said, adding that employers across the board may train managers to identify whether an employee is under the influence of cannabis, similar to their approach to alcohol and other drugs. 

Employment law experts previously told HR Dive that even in workplaces that became remote during the pandemic employers continued drug-testing regimens.

Responding to the question of how an employer could implement a change of policy similar to Amazon’s, Mr Freimann said HR teams may need to first review their employee handbooks and policies to determine existing compliance measures and training protocols. From there, employers can identify which jobs they will continue testing protocols for and which ones they will end.

Off-duty conduct will probably be a key consideration; "If someone did come to work and use marijuana recreationally while they were off-duty, how are we treating that person?" Mr Freimann said.

Employers also need to ensure that the definition of "reasonable suspicion" within their policies "is well-defined and understood" within the organisation, including during training, he noted. If a manager determines that an employee is impaired by marijuana use, "they have to articulate why they have reasonable suspicion to do that," Mr Freimann explained.

Documentation is also important. "Make sure you're following up verbal discussions or emails with memos you can put in the file [and] doing things as contemporaneously as possible," he advised.

Source: HR Dive

(Links and quotes via original reporting)