As laws protecting adult use of both medical and recreational marijuana use spread, the second-largest employer in the U.S. is changing its tune on drug testing.
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 the same as alcohol use.
The announcement was surprising despite Amazon's status as a trend-setter from a business operations perspective, Michael Freimann, partner at Greenspoon Marder, told HR Dive. But the news could have a "ripple effect" on how other employers approach marijuana testing moving forward, he added, due to the fact that more and more jurisdictions have implemented marijuana use legislation.
Currently, 18 states as well as Washington, D.C., have adopted laws that legalize some form 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 statutes, states have added provisions that include varying forms of protections 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.
This year, two states followed up 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, neighboring state New York adopted legislation prohibiting employment discrimination against workers based on cannabis use prior to the beginning of or after the conlusion of their work hours, off 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. Following passage of Virginia's recreational use legislation this year, the city government of Norfolk, Virginia, dropped drug testing requirements for many job categories, save for certain "safety sensitive" positions, local news outlet WAVY-TV reported.
The approach may spread as employers seek uniformity in their drug-testing policies amid a fractured legal landscape, according to Freimann.
"We're starting to see a trend of states taking these next steps," he added. "Amazon's announcement is a way to get ahead of the curve."
But that does not mean many employers will drop drug testing requirements altogether, even for marijuana; like Amazon, employers will likely need to keep in place requirements for positions regulated by DOT, Freimann said. And many states that have legalized 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 that aid in maintaining safe workplaces.
"Safety will still be paramount," Freimann said, adding that employers across the board may train managers to identify whether an employee is under the influence of cannabis, similar to alcohol and other drugs. Even in workplaces that moved remote during the pandemic, employers continued drug testing regimens, employment law experts previously told HR Dive.
Asked how an employer might implement a change in policy similar to Amazon, 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 not.
Off-duty conduct is likely to 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?" Freimann said.
Additionally, employers need to ensure that the definition of "reasonable suspicion" within their policies "is well-defined and understood" within the organization, including during training, he noted. If a manager determines an employee is impaired by marijuana use, "they have to articulate why they have reasonable suspicion to do that," 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," Freimann said.