The New Mexico medical marijuana law has been amended to provide employment protections to employees and applicants. The amendments were signed into law by the governor on April 4, 2019.
The law now provides that “unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, it is unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under [the medical marijuana law].” The law also expanded the definition of a “debilitating medical condition” for which individuals may use medical marijuana.
Employers still are permitted, however, to take adverse employment actions against an employee for “the use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment.” The law does not define what “impaired by” means, and does not address positive drug test results. In addition, medical marijuana users are not protected from criminal prosecution or civil penalty for possession or use of marijuana in the workplace.
These new employment protections do not apply to employees deemed by the employer to work in a safety-sensitive position. “Safety-sensitive position” is defined to mean a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.
New Mexico employers should review their drug testing policies to determine whether any revisions are warranted and should train the appropriate managers to respond to employment issues involving medical marijuana, such as requests for accommodations and positive drug test results.