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By Janis I. Jeffreys
So, why has Amazon.com (Amazon), the nation’s second largest private employer in the United States, changed its ways effective June 1, 2021? This article reviews the reasons given for Amazon’s recently changed stance on its pre-employment drug testing policy for marijuana but also discusses the part that Amazon does not want to say out loud.
In its public facing remarks and employee communications, Amazon has asserted that it wants to continue on its path “to become Earth’s Best Employer” and acknowledged that it had prevented job applicants who use marijuana from being employed at Amazon. On June 1, 2021, in an Amazon.com blog post addressed to U.S. based employees of Amazon, the company stated that it would no longer be engaged in pre-employment drug testing for marijuana use, except for positions that fall under DOT regulations.1 According to NPR, Amazon would continue to conduct pre-employment screening for marijuana use in jobs “includ[ing] delivery truck drivers and operators of heavy machinery.”2 In addition, Amazon stated that it “[would] be actively supporting the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act), . . . [a piece of] legislation that, [if enacted], would legalize marijuana at the federal level . . . .”3
Nonetheless, Amazon’s stance is about something more than being politically progressive to enhance its public image, or being fair to those trying to get hired, or throwing its substantial weight in the fight to help legalize marijuana across the United States. In just one sentence of its blog, Amazon made the thinnest mention that changing state laws across the country were also a reason for changing policy direction. This is, perhaps, the most significant reason. But why would Amazon minimize this reason? What Amazon is not saying out loud is that, because of these state law changes, the corporation is currently in the midst of a lawsuit, and it is not the first lawsuit Amazon has faced of this kind.4 Of course, no company would want to outwardly admit that it was involved in ongoing court proceedings because preserving a positive corporate image is all-important.
Amazon’s decision to cease pre-employment drug testing for marijuana included several reasons, express and implied. The final, unarticulated reason, which would be a serious concern for any corporation, is halting the growing number of lawsuits resulting from those changes in state laws. Unbeknownst to some, Amazon has been sued in various states where marijuana use is legal, recreationally or medically, even though marijuana use is still illegal on the federal level.
At the time of Amazon’s blog post on June 1, 2021, there was a case pending in the U.S. District Court for the Eastern District of Pennsylvania, Miller v. Amazon.com, 2021 U.S. Dist. LEXIS 109609 (E.D. Pa. June 11, 2021), with an amended complaint filed April 9, 2021. At the crux of this complaint, the plaintiff, Nathan Miller, stated that he was a certified legal user of medical marijuana in PA, and he asserted that defendant, Amazon, was in “[v]iolation of Pennsylvania’s Medical Marijuana Act . . . ” (MMA) for its “[r]efusal to hire [plaintiff] on the basis of an alleged failed drug test,” attributed to plaintiff’s marijuana use.5 The MMA specifically protects workers from this type of employment discrimination, with little exception.6
Even though PA is an at-will employment state, the complaint by Mr. Miller also included a count for breach of contract by Amazon for refusing to hire him. The plaintiff had alleged that he had been offered an eleven-month position working directly for Amazon conditioned upon his passing of the pre-employment drug test. Additionally, the plaintiff alleged that Amazon’s hiring supervisors were informed that plaintiff was a valid medical marijuana card holder prior to his drug test.7
On June 11, 2021, just ten days after Amazon published its blog to inform employees and others that it would no longer require marijuana screening as part of its pre-employment drug testing policy, Judge Robreno, of the U.S. District Court for the Eastern District of PA, denied Amazon’s “partial motion to dismiss” the breach of contract claim by Mr. Miller.8 Notably, Amazon did not include in its partial motion to dismiss anything about the violation of the Medical Marijuana Act.
So, what happens next? The remaining portions of the Miller case, related to the MMA violation and the Breach of Contract claim, are still pending in federal court. However, based on Amazon’s recent public statement regarding its revised drug testing policy and sudden advocacy for legalization of marijuana use, the likely outcome of this case is that Mr. Miller will prevail in some form, either by out of court settlement or judgment on the merits. This case and those coming before it demonstrate that Amazon’s change of heart regarding its pre-employment drug testing policy may have been more about stopping lawsuits than it was about advancing Amazon’s corporate image by supporting progressive legislation to legalize marijuana use. However, Amazon’s policy revision will effectively serve both purposes.
If you are an employee or employer with questions about the PA Medical Marijuana Act and pre-employment drug testing policies, please contact our office.
Sources:
1 Amazon.com, Update on our vision to be Earth’s Best Employer and Earth’s Safest Place to Work, https://www.aboutamazon.com/news/operations/update-on-our-vision-to-be-earths-best-employer-and-earths-safest-place-to-work (June 1, 2021).
2 Bill Chappell, Amazon Will Stop Testing Job Seekers For Marijuana and Now Backs Legalizing Weed, (June 2, 2021, 1:37 PM), https://www.npr.org/2021/06/02/1002409858/amazon-wont-test-jobseekers-for-marijuana.
3 Amazon.com, Update on our vision to be Earth’s Best Employer and Earth’s Safest Place to Work, https://www.aboutamazon.com/news/operations/update-on-our-vision-to-be-earths-best-employer-and-earths-safest-place-to-work, (June 1, 2021).
4 See Dewey v. Amazon.com, Inc., 2019 WL 3384769 (Del. Super. Ct. 2019) (Unpublished. Plaintiff, temporary employee of staffing agency and N.J. medical marijuana cardholder, applied for a permanent position with defendant, Amazon, and defendant allegedly refused to hire her due to Plaintiff’s failed drug test for marijuana. Dismissed without prejudice on lack of subject matter jurisdiction due to staffing agency’s contractual arbitration clause of which Amazon argued that it was seeking enforcement as a third-party beneficiary.).
5 Miller v. Amazon.com Serv., Inc., No. 2:21-cv-944-ER, 2021 U.S. Dist. LEXIS 109609, *1-2, *6 (E.D. Pa. June 11, 2021). (Granted “Quest’s Motion to Dismiss.” Denied “Amazon’s Partial Motion to Dismiss.”).
6 Medical Marijuana Act, 2016 Pa. Laws 16 (Section 2103(b)(1) “No employer may discharge, threaten, refuse to hire or otherwise discriminate . . . solely on the basis of such employee’s status . . . [as] certified to use medical marijuana.”) (As an exception to Section 2103(b)(1), Section 2103(b)(3) states, “[n]othing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.”).
7 Miller, 2021 U.S. Dist. LEXIS 109609 at *2-3.
8 Id. at *1-2, *17.
About the Author:
Janis I. Jeffreys is a law student at Widener University Commonwealth Law School graduating in December 2021, Business and External Managing Editor of the Widener Commonwealth Law Review, previous President and current Vice President of Academic and Social Affairs of the Widener Law Commonwealth Moot Court Honor Society.
