Earlier this summer, New Mexico created new protections for employees who use medical cannabis. In the past, employees with prescribed medical use cards were afraid to use their medicine based on fear of a positive drug test at work. New Mexico law now protects many of these employees, though the application of the law is completely untested.

The new addition to the Lynn and Erin Compassionate Use Act, NMSA (1978) §26-2B-9 (the “Act”) went into effect on June 14, 2019. Under the employment protections in the Act, “it is unlawful to take an adverse employment action against an applicant or employee based on” the employee’s use of medical cannabis otherwise allowed under the Act.

The employment protections are limited. If the employer would lose a “monetary benefit” or “licensing” related benefit under federal law, the employer does not have to comply. In other words, if the employer is a federal contractor who is prohibited from having employees use cannabis, the employer may argue that this law does not apply to them. Also, employees are not protected if they use cannabis at work or are impaired at work. The Act further excludes employees who are in “safety-sensitive” positions.

So, with all of its limitations, what does the Act cover? If an employee uses medical cannabis at home, they cannot be terminated just for having a cannabis metabolite show up in a random drug test. In order to take action against an employee for a positive medical cannabis test, the employer would have to show that the employee (1) used cannabis at work, or (2) was impaired at work, or (3) was in a safety-sensitive position or (4) that the employer would lose federal benefits if it complied with the Act.

This Act may pose some real challenges for employers who suspect that an employee is impaired at work. “Impairment” is not defined in the Act and the Act provides no threshold THC or other chemical test result level that would establish any presumption of impairment. This is a matter that appears to be up to our courts to define, perhaps based on a combination of circumstantial evidence, proof of consumption timing, amount of cannabis consumed, and/or expert toxicology reports. Right now, there is nothing defined by the law that we know is sufficient to establish impairment.

If you are an employer struggling with amending your policies and procedures to comply with the Act, or an employee who feels that they did not receive appropriate protections under the Act, contact Deena Buchanan at the Buchanan Law Firm at 505-900-3559.