Hazy legislation

NM’s changes for medical marijuana create a fog around drug-free workplace rules

Did changes in New Mexico’s medical cannabis laws that took effect this month essentially do away with the ability of employers to require a drug-free workplace? The answer isn’t entirely clear, but there’s a good chance that it’s “Yes.”

Sen. Gerald Ortiz y Pino, an Albuquerque Democrat and longtime supporter of legalized recreational marijuana, says the legislation signed into law by Gov. Michelle Lujan Grisham means an employee enrolled in the state’s medical marijuana program can’t be fired simply for testing positive for cannabis. Then he says the legislation, which was intended to clarify the law, wasn’t intended to render drug-free workplace policies untenable.

Confused yet? And not even smoking?

The law has sections that seemingly collide. One says that in most circumstances it is unlawful for an employer to fire or otherwise discipline a worker based on allowable conduct under the state’s medical marijuana program. So if you’re one of the approximately 73,000 people in the state who fit into that category, that would seem to say that for the most part you can “medicate” and come to work.

But a second section specifies that employers can still establish policies barring use of medical marijuana on the job or showing up under the influence — and take action when that happens.

Of course, one of the main problems is that other than testing — as you would, for example with alcohol in a DWI case — there isn’t a good way to determine under the influence.

OK. Maybe falling asleep at the wheel or at your desk — but that can also happen for other reasons.

It’s not clear whether an employer could still do a preemployment screen and reject applicants who test positive for cannabis if they are enrolled in the state’s program.

Meanwhile, the medical marijuana rolls continue to grow.

It began in 2007 as a compassionate program for cancer patients. As of May, there were 3,983 of those — compared with 36,964 with post traumatic stress disorder and 24,859 for chronic pain.

Suffice it to say, it’s a fairly low bar to enroll, and one visit now gets you a card good for three years. Thankfully, that’s not true of prescription pain killers.

So what are employers supposed to do?

“The new language makes it more vague as to when an employer may create a federally compliant drug policy,” said Rob Black of the Association of Commerce and Industry.

Yes, marijuana is still an illegal substance under federal law.

Terri Cole of the Greater Albuquerque Chamber of Commerce says, “Anything that would limit an employer’s ability to enforce their drug-free workplace programs would be problematic. It certainly needs clarity . ... ”

On that score, the state Department of Health, which administers the medical marijuana program, isn’t much help.

Spokesman David Morgan says disputes between employers and employees regarding employment protections in the new law “would need to be resolved through their employment process or the courts.”

He does say employers could take action against employees if they hold “safety sensitive” jobs.

Meanwhile, the state is rushing headlong into legalizing recreational marijuana use. Lujan Grisham has appointed a task force and says she will put the issue on next year’s legislative call.

The confusion over the medical marijuana law changes should be a warning sign that both clarity and restraint are needed, with the ability of employers to have a drug-free workplace given serious consideration.

After all, it’s also legal to own a gun. But in most cases, your employer won’t let you take it to work.