Amazon is on thin ice after firing a warehouse worker because he tested positive for marijuana use, later claiming it was because he didn’t disclose his use before drug testing. But here’s the problem: The worker claims that 1) he had a state-issued card (in New Jersey) to use medical marijuana to treat a panic and anxiety disorder, 2) he never used the drug in the hours before work and wasn’t impaired on the job, and 3) before the test, he tried to disclose his prescription, but the collector allegedly said he could to that later.
A month after testing, the man was blindsided with the termination as well as being “blacklisted” from working for other Amazon-related companies like Whole Foods.
“Just like alcohol and prescription drug use, using marijuana and other cannabis products can be grounds for being fired when the substance compromises work performance and becomes a safety risk,” The HT Group’s Director of Staffing Services Claire Reese points out.
Take a look at our previous coverage on the complications of drug testing in the workplace, even in a conservative state like Texas. Now that CBD oil with low levels of THC is legal both federally and in Texas, those complications are exasperated even for workers who haven’t smoked a joint in their lives. According to Consumer Reports, while the federally acceptable limits of THC shouldn’t affect drug tests, CBD products could have more THC than the label claims and “it’s also possible that, over time, the small amounts of THC allowed in CBD products could build up in the body to detectable levels.”
A Fox affiliate reports that experts at Any Lab Test Now say they’re seeing a growing number of pre-employment drug tests coming back red-flagged for THC even though the people being tested claim to only be taking store-bought CBD.
SHRM offers helpful best practices for HR when it comes to this grey area on THC-included substances in the workplace. The tips include training managers to spot signs of impairment, staying on top of developments in the technology of drug testing, and paying attention to the various jurisdictions in which your employees work.
Austin-based HR consulting Jessica Miller-Merrell points out that not only are federal, state, and local rules rapidly changing, but so will court interpretations of the laws.
“With the increased legalization of marijuana, it is possible that more courts will begin interpreting the Americans with Disabilities Act (ADA) and its state-specific equivalent laws to require companies to consider an employee’s use of medical marijuana as a reasonable accommodation,” she suggests, adding that the use of CBD oil as a reasonable accommodation may not be far behind.
The bottom line is to continue to work with a knowledgeable attorney on crafting and continuously re-evaluating a clear and concise drug policy that may need to change with the times.