Although New Mexico has had a medical marijuana law in place since 2007, it did not contain protections for job applicants and employees. However, all of that changed on April 4, 2019 when New Mexico Governor Grisham signed Senate Bill 406, which amends the Lynn and Erin Compassionate Use Act (the “Act”) to include changes that will impact New Mexico employers and their consideration and treatment of individuals using medical marijuana.

In addition to expanding the types of conditions for which an individual can use medical marijuana, employers now are prohibited from taking any “adverse employment action against an applicant or an employee based on conduct allowed under” the Act, including declining to hire, terminating, or taking any other adverse action against an individual because he or she is using medical marijuana or received a recommendation for such use by a provider.

There are some exceptions. Specifically, the employment protections do not apply:

  • If the employer would lose monetary or other licensing-related benefits under federal laws or regulations if it hires or employs individuals who use marijuana or test positive for marijuana.
  • If the employee will work 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.”
  • To employees who use or are impaired by medical marijuana while working, during “hours of employment,” or on premises. 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.”

Unlike a few other medical marijuana laws, SB 406 says nothing about what, if anything, an employer can do if an applicant or employee tests positive for marijuana. Moreover, while employers can take action against employees impaired by marijuana while working, on premises or during working hours, the law provides no clarity as to what it means for an employee to be “impaired by” marijuana. New Mexico employers will now need to consider how best to respond when a medical marijuana user tests positive for the drug.

More states are enacting medical marijuana laws with provisions protecting applicants and employees, and while the initial trend in the courts favored employers, courts have started issuing employee-friendly decisions addressing existing laws. The laws and court decisions are making it particularly challenging, yet critically important, for employers to stay ahead of this fast-moving trend and avoid being a test case in their state. This is especially true now that applicants and employees are bringing claims under state disability discrimination laws rather than medical marijuana laws. Employers in all jurisdictions should review their current policies and practices addressing “weed at work” and continue to monitor developments in this evolving area of law.