Amazon Drops Marijuana Screening, Supports Federal MORE Act

Amazon is adjusting its drug-testing policy for U.S. field operations teams and will no longer screen for marijuana in many circumstances, according to a June 1 announcement.

"In the past, like many employers, we've disqualified people from working at Amazon if they tested positive for marijuana use," said Amazon retail executive Dave Clark. "However, given where state laws are moving across the U.S., we've changed course. We will no longer include marijuana in our comprehensive drug-screening program for any positions not regulated by the Department of Transportation and will instead treat it the same as alcohol use." 

Clark said the online retail giant will continue to monitor for on-the-job impairment and conduct post-incident drug and alcohol tests.

Additionally, Amazon's public-policy team will support the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which would legalize marijuana at the federal level. "We hope that other employers will join us, and that policymakers will act swiftly to pass this law," Clark said.

Although all marijuana use remains illegal at the federal level, at least 36 states have legalized medical use and 16 of those states have passed laws allowing recreational use. (A medicinal law in Mississippi and a recreational law in South Dakota have been halted by courts.)

Employers should note that cannabis laws in some states include workplace protections. "As more states legalize marijuana use, companies with operations across multiple states will be forced to re-evaluate their workplace policies, as well as whether it is still practical to continue spending resources on drug testing," said Michael Freimann, an attorney with Greenspoon Marder in Denver.

Congress Considers Federal Legalization

Marijuana is still listed as a Schedule I drug under the federal Controlled Substances Act, which means it is deemed to have a high potential for abuse and no medical value.

Legalizing marijuana would take congressional action, and lawmakers are currently considering several bills.

The MORE Act would deschedule marijuana, remove criminal sanctions and provide some relief for past convictions. In 2020, the House of Representatives passed a version of the bill in a 228-164 vote that fell mostly along party lines, with six Democrats voting against it and five Republicans voting for it. But the legislation did not advance in the Senate.

Rep. Jerry Nadler, D-N.Y., reintroduced the MORE Act on May 28. "Since I introduced the MORE Act last Congress, numerous states across the nation, including my home state of New York, have moved to legalize marijuana. Our federal laws must keep up with this pace," he said.

Rep. Dave Joyce, R-Ohio, also recently introduced a bill to deschedule cannabis. The Common Sense Cannabis Reform for Veterans, Small Businesses and Medical Professionals Act would direct the federal government to regulate cannabis in a manner similar to how it regulates alcohol, allow financial institutions to do business with cannabis companies and allow the Department of Veterans Affairs to prescribe medical marijuana to veterans. The bill does not include some taxation and social justice aspects of the MORE Act.

Joyce said the bill would help veterans and support small businesses and their workers "while respecting the rights of states to make their own decisions regarding cannabis policies that are best for their constituents."

Legal Hodgepodge Makes Testing Complicated

States would still regulate cannabis under the federal proposals, and employers should note that state laws vary significantly as to whether they provide workplace protection for off-duty use.

For example, California and Colorado do not protect employees who consume cannabis for medical or recreational purposes, even outside of work hours. New Jersey and New York, however, recently passed recreational laws that include employment protections. New York's law prohibits employment discrimination against people who lawfully use recreational marijuana off duty, while New Jersey's law protects anyone who uses marijuana, and it prohibits adverse employment actions based solely on a positive marijuana test result.

Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J., said given the inclusion of the word "solely" in New Jersey's law, an employer could fire an employee if there is a reason beyond the positive test result to support the decision, such as a positive drug test in combination with observed behaviors that indicate intoxication.

She noted that New Jersey's law is unique from other state laws because it imposes strenuous requirements on employers that screen for cannabis use.

Multistate employers should be aware that Nevada doesn't allow employers to take adverse action against job applicants who test positive for marijuana, and Philadelphia recently enacted a law prohibiting most employers in the city from testing new hires for marijuana use starting Jan. 1, 2022. Each law has exceptions for safety-sensitive positions.

Additionally, some states that don't protect recreational use still prohibit employers from taking adverse employment action based on a job candidate's or employee's status as a registered medical marijuana patient.

Employers in jurisdictions that protect off-duty use may decide to stop testing job applicants and employees for cannabis use altogether, Mastroianni said. "Employers that decide to continue drug testing employees for cannabis must consult with counsel to ensure the drug-testing program is fully compliant with the applicable laws."

She recommended that employers train managers to identify when an employee is under the influence of cannabis, since employees in some jurisdictions cannot be disciplined or fired solely due to a positive drug test.