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Concerned about Employee Medical Cannabis Use Rights in New Mexico?

The Land of Enchantment has been turning quite a few heads with its quiet leadership in the cannabis world. From talk of full legalization this year to advances in the right of the incarcerated to access medical cannabis, New Mexico has been rewriting the rules when it comes to cannabis law. And nowhere is that more apparent than the question of employee medical cannabis use rights. What’s the latest in this important front in the fight for transparent and fair cannabis law? Here’s where we stand as of Spring 2021.

Employee Medical Cannabis Use Rights: An Historic Law Offers Basic Protections

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New Mexico, of course, legalized medical cannabis back in 2007. But until fairly recently, employees who took advantage of the law to actually use that legal cannabis could be—and often were—terminated from their jobs because of it. Donna Smith, a physician assistant, lost her suit because she did not inform her employer of her qualifying condition, PTSD. Rojerio Garcia did inform his employer—a farm equipment supply firm—that he was using cannabis to treat a serious medical condition, but was terminated anyway. And Augustine Stanley, an officer at a detention facility, was fired after failing a random drug test. Stanley’s case was elevated to a civil suit in federal court, where the presiding judge dismissed the officer’s claims.

The lack of basic employee medical cannabis use rights took a turn in 2019 when Governor Michelle Lujan Grisham signed Senate Bill 406 into law. In providing basic protections for New Mexico’s roughly 94,000 medical cannabis patients, SB 406 was hailed as a major advance towards employee medical cannabis use rights. In addition to expanding the list of qualifying conditions for which one can use medical cannabis, employers were prohibited from taking any “adverse employment action against an applicant or an employee based on conduct allowed under” the state’s medical use law. These include declining to hire, terminating, or taking any other adverse action against an individual because he or she is using medical cannabis or received a recommendation for such use by a provider. That said, there are some notable exceptions to these basic protections, including:

  • If in hiring or retaining that employee, the employer would lose monetary or other licensing-related benefits under federal laws or regulations
  • If the employee works in a “safety-sensitive position,” 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”
  • If employees use or “are impaired by” medical cannabis while working, during “hours of employment,” or on premises.

This last one is a bit sticky, as it appears to contradict SB 406’s protections. For instance, what does “impaired by” mean? Thus far, the bill hasn’t faced a significant legal challenge. Indeed, the law is clear that employers can take adverse action against an employee for using or being impaired by marijuana “on the premises of the place of employment or during the hours of employment.” Thus far, however, the bill’s protections have held fast against employer overreach.

Employee Medical Cannabis Use Rights: Piggybacking on Rights of the Incarcerated

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As we’ve reported previously, New Mexico has also led the way in a different but closely related area: The rights of the incarcerated. Also in 2019, an Albuquerque resident was convicted of drunk driving and sentenced to house arrest. Though the man had qualified for medical cannabis prior to his arrest, one of the conditions of his sentence was that he not use any illegal drugs. But when he failed a drug test, he was jailed for 30 days.

This led to a lawsuit filed in mid-2020 by New Mexico State Senator Jacob Candelaria, a noted cannabis advocate who also happens to be a Bernalillo County attorney. At the end of the year, a ruling by 2nd Judicial District Judge Lucy Solimon found that as a state-certified cannabis patient, the man had a right to his medical cannabis.

While state lawmakers had ruled previously that those under house arrest or probation could have access to medical cannabis, the judge’s ruling explicitly included anyone incarcerated in the state. This is a big deal for the roughly 18,000 prisoners currently jailed in New Mexico. And it’s safe to say that all around the country, advocates will be watching the fallout from New Mexico’s quiet but impactful leaps towards fair and transparent cannabis laws very, very closely.