Although medical marijuana is now legal in twenty-three states, including New Mexico, it remains illegal under federal law. This creates a challenging legal landscape for employers who want or need to drug test employees, but do not want to expose themselves to potential liability for disability discrimination.

The Law

The Lynn and Erin Compassionate Use Act, § 26-2B-1 NMSA et seq., legalizes the appropriate use of medical marijuana in New Mexico. The purpose of this law is to "allow the beneficial use of medical cannabis … for alleviating symptoms caused by debilitating medical conditions." § 26-2B-2 NMSA. Under the federal Americans with Disabilities Act (ADA) and the New Mexico Human Rights Act (NMHRA), an employer must accommodate an employee's serious medical condition unless the accommodation would impose an undue hardship on the employer.

It remains illegal to possess and use marijuana under the federal Controlled Substances Act. Further, under the Drug Free Workplace Act of 1988, employers may not receive federal grants unless they make "a good faith effort to provide a drug-free workplace." 41 U.S.C. § 8103(b)(1)(B). Notably, however, this law does not require employers to administer employee drug tests. In New Mexico, all job applicants for safety-sensitive positions in state agencies must submit to drug testing before beginning employment. 1.7.8.11 NMAC.

These seemingly contradictory laws place employers between a rock and a hard place when deciding whether to overlook, accommodate, or prohibit off-site medical marijuana use by employees.

Interpreting the Law

Employers can rest assured that the law is clear one thing: Employers may take action against employees for using medical marijuana in the workplace or for being impaired on the job. 

The law is murkier when it comes to employer regulation of off-site medical marijuana use that does not negatively affect job performance. New Mexico courts have not yet weighed in on this issue. Federal and state courts outside of New Mexico, however, have held that the ADA and state laws do not require employers to accommodate an employee's off-site medical marijuana use. See, for example, James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012); Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012); Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 257 P.3d 586 (Wash. 2011); Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008). In James, the court held that the federal ADA does not protect employees who use medical marijuana because all marijuana use is still illegal under federal law. In the other three cases, the courts held that state laws legalizing medical marijuana, similar to the Compassionate Use Act in New Mexico, do not require employers to accommodate medical marijuana use. In line with these cases, a New Mexico employer could argue that it would cause an "undue hardship" under the NMHRA to condone a practice that violates federal law.

Although courts in other jurisdictions have overwhelmingly ruled in favor of employers who terminated medical marijuana users, New Mexico courts might hold that the NMHRA requires accommodation of off-site use. Last year, the Court of Appeals held that under the Workers' Compensation Act, an employer must reimburse an injured worker for medical marijuana. Vialpando v. Ben's Auto. Servs., 2014-NMCA-084. The Court noted that "New Mexico public policy is clear" in light of the Compassionate Use Act.

Best Practices

Employers can confidently prohibit all medical marijuana use that occurs on-site or causes impairment on the job. Additionally, employers should drug-test employees if required to do so by law or regulation, or if necessary to ensure safety. So far, it is clear that employers do not violate the federal ADA by prohibiting even off-site medical marijuana use because marijuana remains illegal under federal law; however, New Mexico courts may find that such prohibitions violate the NMHRA.

When considering the NMHRA, employers should balance their interests in drug-testing employees and prohibiting off-site medical marijuana use against the risk of defending an employment discrimination lawsuit, keeping in mind that litigation can be costly regardless of the lawsuit's merits. To comply with the ADA and NMHRA, employers should always exercise caution when speaking with an employee about medical marijuana use and any related medical issues.  Unless required to drug test by law or for safety reasons, the employer may consider accommodating an employee's off-site, non-impairing medical marijuana use by, for example, modifying drug testing procedures for that employee. Employers should consider seeking legal counsel if they are unsure whether a proposed course of action is consistent with the law.

Finally, employers should watch for legal developments in this area. There are currently two cases pending in the New Mexico state and federal courts dealing with employee use of medical marijuana. See Smith v. Presbyterian, D-202-CV-201403906 (New Mexico state court); Stanley v. County of Bernalillo, 1:14-cv-00550 (New Mexico federal court). Both cases involve veterans whose doctors recommended medical marijuana to treat PTSD. In Smith v. Presbyterian, Donna Smith, a physician's assistant, sued Presbyterian Healthcare Services after she was fired four days into her job at an urgent care clinic because she tested positive for marijuana during a company-mandated drug test. In her lawsuit, Ms. Smith claims that Presbyterian violated her rights under the NMHRA by wrongfully terminating her due to her physical or mental handicap or serious medical condition, PTSD. In Stanley v. County of Bernalillo, Lieutenant Augustine Stanley, an experienced corrections officer at a county jail, was terminated when he tested positive for marijuana during a random drug test and jail officials made his continued employment contingent on future negative tests. Lieutenant Stanley claims that he used medical marijuana after work, and that his supervisors had never noticed any negative effects on his job performance. He alleges that his employer violated his rights under the ADA and NMHRA by refusing to accommodate his disability of PTSD. When resolved, these two cases may offer clarity to employers with respect to their legal rights and obligations concerning employee use of medical marijuana.