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New Mexico - Considerations for Marijuana in the Workplace

  • Last Update on April 18, 2023

Medical
Marijuana Law:

Recreational
Marijuana Law:

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Employer Concerns – Significant to Review

  • Employers may not terminate or refuse to hire based on an individual’s legal status as a medical marijuana patient.
  • Employers may refuse to hire, terminate, or discipline medical marijuana users based on a positive drug test.
  • Nothing in law prohibits an employer from taking adverse employment action for an employee’s using or being under the influence of marijuana in the workplace during work hours.
  • (New Mexico SA 1978, New Mexico’s recreational marijuana law) Allows that employers are specifically permitted to take adverse action as a result of a positive test for any amount of THC or THC metabolite.
  • Patients can face criminal prosecution or civil penalties for possession, distribution, transfer, or use in workplaces, public transportation vehicles, public parks, recreation centers, and other named environments.
  • Consuming or being under the influence of marijuana is prohibited for drivers or passengers in a motor vehicle.
  • New Mexico’s Senate Bill 406 amendments expands employment protections to New Mexico’s medical marijuana law. IMPORTANT: Employees who qualify for employment protections are likely to be covered by the disability anti-discrimination provisions of the New Mexico Human Rights Act. Employers should work with experienced state-specific legal counsel to limit their exposure.
  • In a court decision, the court held that the state’s workers’ compensation law permits reimbursement of an employee’s medical marijuana costs.

Testing

  • Employers may refuse to hire, may terminate or discipline medical marijuana users based on a positive drug test.
  • Although there is no New Mexico drug statute, there is workers’ compensation related voluntary law with details regarding drug testing requirements.

Hiring/Termination

  • Employers may not terminate or refuse to hire based on an individual’s legal status as a medical marijuana patient unless
    • the role in question is safety-sensitive defined as, (Senate Bill 406) “…performance by a person under the influence of drugs … would constitute an immediate or direct threat of injury or death to that person or another.”
    • the employee’s use would jeopardize the employer’s federal contracts or funds.
    • the employee uses or is under the influence, (Senate Bill 406) “… on the premises of the place of employment or during the hours of employment” even if the employee is a legal medical marijuana patient.

Discipline

  • Nothing in law prohibits an employer from taking adverse employment action for an employee’s using or being under the influence of marijuana in the workplace or during work hours.

Use/Possession

  • Consumption must be out of public view; is prohibited in public except in licensed cannabis consumption areas.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • Driving under the influence of cannabis is illegal and consumption is prohibited for drivers and passengers.
  • There is workers’ compensation voluntary law with details regarding drug testing requirements. Although not required, this statute provides greater latitude for an employer to deny workers’ compensation claims.
  • In a court decision, the court held that the state’s workers’ compensation law permits such reimbursement of an employee’s medical marijuana costs.
  • Workers’ compensation claim denial – If the employer has complied with voluntary guidelines under New Mexico’s workers’ compensation statute regarding drug testing employees and depending on the degree to which drugs contributed to the injury or death, there are provisions to reduce the compensation 10-90%.
  • Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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