Amazon advised its contractor delivery companies that it won’t be screening drivers for cannabis use, potentially opening up the company to liability if its delivery drivers are involved in collisions. Companies are liable for the actions of their employees and contractors (i.e., their agents). Usually, a company isn’t liable if its employees or contractors engage in illegal or unlawful behavior. However, if the company or manager encourages or approves of the action, it could be liable for the foreseeable consequences of those actions. Amazon’s announcement that it won’t screen for cannabis use could result in liability if its drivers are involved in accidents.

Market Incentives: Labor Shortage

Amazon is not immune to the supply and labor shortages plaguing the country and the world. Amazon is struggling to source its products, purchase technologies to expand its services, and hire warehouse and delivery drivers to continue its services. The company is struggling to hire new drivers to ensure its delivery services remain operational — especially as the holiday shopping season is right around the corner.

To encourage more applicants, Amazon announced that it would stop screening its delivery contractors for cannabis use. Amazon predicts that it can increase applications by 400% if it drops cannabis screening. However, while recreational and medicinal cannabis use is legal in most states — it is still illegal to drive under the influence of alcohol or drugs.

A Primer on Tort Liability

Tort is a theory of legal liability when parties to an interaction fail to adhere to reasonable or acceptable standards of behavior.

Example 1: If Person A strikes Person B and causes an injury — Person A is liable to Person B for Person B’s injuries because Person A intentionally injured Person B.

Negligence is another tort theory of recovery whereby, rather than intentional actions, a party is liable because he or she failed to exercise reasonable care, which caused another party injury.

Example 2: Person A consumes cannabis and then operates a commercial delivery truck. Person A’s judgment and reaction time is impaired due to the cannabis use and strikes Person B’s personal automobile, causing personal injuries and property damage. Person A is liable to Person B because he or she didn’t exercise reasonable care when he or she chose to consume cannabis and operate a commercial delivery vehicle.

In these two scenarios, the only parties involved are the people who were directly connected to the accident or event that caused the injuries. However, employers and companies can be liable through the actions of their employees and contractors. A company is liable when the employee’s negligence is within the scope of employment. In example two, Person A is operating a commercial delivery truck. If that operation was within the scope of his or her employment — like if he or she were on a delivery route — then the employer would also be liable. In this case, the plaintiff could sue the delivery driver and his or her employer equally. The delivery driver is liable because he or she didn’t exercise due care, and the company is liable because it is responsible for the actions of its employees.

Tort Liability and Amazon

Amazon is not the direct employer of most of these delivery drivers — it contracts with smaller “mom-and-pop” companies that deliver goods the last few miles of its service. Most people who run the boxes to people’s homes are contractors wearing Amazon gear — not direct Amazon employees. Accordingly, while the mom-and-pop shop owners are liable for their drivers’ actions, Amazon could argue that it isn’t their employer and isn’t, therefore, liable.

However, if Amazon exerts adequate command and control over its contractors, it could be implicitly liable for the actions of its contractors. In general, the difference between an independent contractor and an employee is the company’s degree of control over the worker. For an employee, the company can tell the employee what to do, how to do it, and when to do it. For a contractor, the company tells the worker what to do and when but not how.

For example, a homeowner hires a painter to repaint the exterior of the home. The homeowner is telling the painter what to do, and the painter gives an estimate whereby the homeowner either hires the painter or not. The homeowner and the painter agree on the what (paint the home) and the when (by the estimate), but the homeowner doesn’t tell the painter how to do his or her job. The painter will use his or her tools, and delegate other tasks based on experience.

Unlike that scenario, here, Amazon tells its drivers what to deliver, when, and how. It provides them with trucks and uniforms. Therefore, it is possible that Amazon could also face liability for the actions of its drivers.