The New Mexico Legislature enacted legislation expanding employment protections for medical marijuana users. Recent changes to the Lynn and Erin Compassionate Use Act—the state's medical marijuana law—expand the range of medical conditions for which medical marijuana may be used and create new employment protections for employees who legally use medical marijuana.
On April 4, New Mexico Governor Michelle Lujan Grisham signed SB 406 into law. SB 406 is the first statutory change to the Lynn and Erin Compassionate Use Act since it was enacted in 2007. At least two of the changes are of potential importance for New Mexico employers.
Adverse Action
SB 406 creates employment protections for employees who use medical marijuana. The law now prohibits employers from taking any "adverse employment action against an applicant or an employee based on conduct allowed under the Lynn and Erin Compassionate Use Act," with some exceptions.
In most situations, New Mexico employers are now prohibited from refusing to hire, discharging or taking any adverse action against a job applicant or employee solely on the basis of the individual having a prescription for and/or using medical marijuana.
Exceptions
While SB 406 creates significant employment protections for medical marijuana users, these protections are not absolute, and several exceptions to the law apply.
First, the employment protections do not apply to employers that could lose monetary or licensing-related benefits under federal law or federal regulations for hiring or employing individuals who use marijuana or test positive for marijuana use.
Second, the protections in SB 406 do not apply to employees who work in a "safety-sensitive position," defined as "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."
The law also does not protect employees who use or are impaired by medical marijuana while working or on the premises of employment or during the hours of employment. Employers may still take adverse action against employees "for use of, or being impaired by, [marijuana] on the premises of the place of employment or during the hours of employment," even if the employee has a prescription for medical marijuana.
More Covered Conditions
SB 406 expands the definition of a "debilitating medical condition" for which medical marijuana may be recommended. Some of the new medical conditions include Parkinson's disease, posttraumatic stress disorder, severe chronic pain, and severe anorexia or cachexia.
Employers may want to keep in mind that employees with the medical conditions covered by the Lynn and Erin Compassionate Use Act, as amended, may be authorized to use medical marijuana. Such employees are subject to the employment protections in SB 406 and are likely to be covered by the disability anti-discrimination provisions of the New Mexico Human Rights Act and federal Americans with Disabilities Act.
Review Policies
In light of the new protections offered by SB 406, New Mexico employers may want to reevaluate existing drug testing policies for applicants and employees. Employers operating in states with similar laws may have already revised their policies to limit mandatory drug tests to employees in (or applicants for) safety-sensitive positions. Employers that prohibit employees from using or being impaired by medical marijuana while working, if they haven't already done so, may want to create policies requiring or allowing for drug testing of employees when there is reasonable suspicion that those employees are impaired at work.
Nonnie L. Shivers and D. Trey Lynn are attorneys with Ogletree Deakins in Phoenix. © 2019 Ogletree Deakins. All rights reserved. Reposted with permission.