What are we to consider with New Mexico’s healthcare workplace and the recent legalization for recreational use cannabis? On June 29, marijuana became legal for recreational use in New Mexico. The Cannabis Regulation Act now allows for New Mexicans over the age of 21 to grow and possess certain quantities of cannabis for personal use. No later than April of 2022, dispensaries around the state that have until now only sold cannabis to customers holding a medical marijuana card can open their doors to all.
What does this mean for employers, and specifically those in the healthcare industry?
Hospitals, clinics and medical offices deal with sensitive information, and deal with situations where mistakes can be deadly. These workplaces require employees to constantly be on top of their game with people’s health and wellbeing at stake.
Ultimately, employers of any type, including healthcare employers, don’t have to treat cannabis any differently than they do alcohol or other drugs.
The Cannabis Regulation Act doesn’t restrict any employer, including hospitals, clinics or medical offices, from prohibiting marijuana use in the healthcare workplace. Or from taking employment action against those who use it.
In fact, protections for employees in New Mexico under the Cannabis Regulation Act don’t apply to those in safety sensitive positions or, importantly, to those impaired while working. Simply put, employers can impose consequences if an employee is impaired by, in possession of, or using intoxicating substances of any sort at work or during work hours. Especially if impairment creates a danger to themselves, or others, like patients, visitors, or co-workers.
There is, however, a caveat. The Lynn and Erin Compassionate Use Act, most recently updated in 2019, carves out exemptions for employees with a medical cannabis card, so long as they are not in safety sensitive positions, and/or not impaired or using marijuana while working. Exceptions to the Act also exist for businesses who face consequences – monetary or licensing – under federal rules for hiring or employing those testing positive for marijuana use.
“The best way for employers to approach cannabis use is to adopt and consistently enforce clear workplace policies that focus on prohibiting impairment and possession rather than conducting pre-employment or random drug screening,†says Cristin Heyns-Bousliman, Esq., Principal and Human Resources Consulting Practice Leader at REDW.
The bottom line is, even considering the Compassionate Use Act, if any employee, even one holding a medical marijuana card, is impaired or in possession of cannabis during work, an employer can take action.
Cannabis and the healthcare workplace: What should you as an employer do?
- Have policies in place that address both medical and recreational use of cannabis in the healthcare workplace. If those policies broadly prohibit the use of cannabis for any reason, consider revisiting them.
- Be aware of the Compassionate Use Act and its provisions.
- Understand whether federal rules prohibit your organization from allowing marijuana use.
- Define what a safety sensitive position is and whether the use of cannabis applies to it.
- When they meet the definition, designate positions as “safety-sensitive†on position descriptions to avoid any confusion as to which roles can be subject to pre-employment screening and/or random screening.
- Monitor employees for signs of impairment, as you would for alcohol or other drugs.
Cristin Heyns-Bousliman, Esq., is Principal and Practice Leader, Human Resources Consulting for REDW CPAs and Advisors. She combines extensive experience in human resources management and strategy, employee relations and engagement, and compensation and benefits. She also maintains a highly valued and in-depth understanding of federal and state employment law as a former litigation attorney specializing in employment law. She may be contacted at cristin.bousliman@redw.com.
Resources
The New Mexico Cannabis Regulation Act: https://www.nmlegis.gov/Sessions/21%20Special/final/HB0002.pdf
Society for Human Resources Management: https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-mexico-and-virginia-approve-recreational-marijuana-laws.aspx
Marijuana Policy Project: https://www.mpp.org/states/new-mexico/
New Mexico Medical Cannabis Program: https://www.nmhealth.org/about/mcp/svcs/
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