REDW’s Cristin Heyns-Bousliman, Principal and Human Resources Consulting Practice Leader, clarifies confusion with employee/employer relationships in light of New Mexico’s new cannabis laws (The Cannabis Regulation Act) and, now legal, recreational marijuana usage.
As companies grapple with the reality that recreational marijuana is legal in New Mexico, many assume that the new law, The Cannabis Regulation Act, controls their employer/employee relationship. They worry that because recreational marijuana is legal, they canâ€™t prohibit its use and might not be allowed to test employees for it. There is no need to worry â€“ especially in the healthcare field. Hereâ€™s why.
The Cannabis Regulation Act and the Workplace
Nothing in the new legislation overrides or contradicts the pre-existing rules about cannabis usage when it comes to the workplace. The Lynn and Erin Compassionate Use Act, most recently updated in 2019, sets the most restrictive framework for employersâ€™ ability to test for and take disciplinary action against employees who use marijuana. These compassionate use (aka medical use) rules apply only to employees who hold a medical cannabis card, however employers are better served when they ensure their policies and procedures around drug testing are reasonable, grounded in business necessity, and will not unnecessarily elicit medical information about employees. For example, pre-employment screening, random drug-testing, and automatic post-accident testing may pry into employee privacy if they are not conducted based upon a legitimate business interest, specifically one of the exceptions discussed below.
Exceptions to the Compassionate Use Act in New Mexico’s Cannabis Laws
There are important exceptions to the Compassionate Use Act. Employers can always take action (i.e., test pre- and randomly during employment), if:
- The business would face consequences â€“ monetary or licensing â€“ under federal rules for hiring or retaining someone testing positive for marijuana; and/or employees are in â€œsafety sensitiveâ€ positions.
- Employers can always test based upon reasonable suspicion when an employee is exhibiting signs of impairment.
In the health care industry â€“ hospitals, clinics, medical offices and even emergency medical services â€“ safety is paramount. Peopleâ€™s lives are on the line. For positions deemed â€œsafety sensitive,â€ which should arguably encompass a broad range of healthcare positions, pre-employment and random testing (and action if results are positive) is left up to the employerâ€™s discretion. Anyone whose job puts them in potential contact with bloodborne or airborne pathogens could be considered safety sensitive. Especially if impairment could lead to safety breaches, harm, injury or death to themselves or others.
Learn more about Cannabis and the Healthcare Workplace.
Simply having access to patientsâ€™ protected health information, as a billing clerk or receptionist might, is not enough to be considered safety sensitive. Of course, if someone shows signs of impairment at work, even if not in a safety sensitive job, employers can take action. Even medical users are not permitted to bring or use cannabis, or be impaired, at work.
Non-Safety Sensitive Positions
But what if a job is not safety sensitive, and federal contracts arenâ€™t on the line? Many organizations have dropped any testing for marijuana entirely. Why? Because with recreational use, the employee has a right to use marijuana in his or her non-work time, and testing technology cannot distinguish impairment at the time of the test versus recreational use during off-duty hours. In this case, pre-employment screening could potentially exclude excellent candidates who legally use recreational cannabis. This is not ideal in the particularly challenging recruiting market that employers are facing now. And again, the company might discover sensitive medical information that there is no reason to learn, which can raise additional legal considerations under the Americans with Disabilities Act. Our practice generally discourages pre-employment and random screenings for marijuana in non-safety sensitive and/or federally funded/regulated positions for this very reason. Ultimately, employers shouldnâ€™t care what an employee did legally on Saturday evening so long as they arrive on time and ready to work on Monday morning.
Evaluate Your Reasoning for Testing an Employee
Instead, we suggest evaluating the reason youâ€™re planning on testing someone. When it comes to pre-employment and random screenings, be sure you are dealing with a â€œsafety sensitiveâ€ job or one that is paid for by federal funds. In those situations, companies are free to prohibit marijuana use, and conduct pre- and post-employment screenings, whether or not an employee has a medical card. In all other situations, it is better to rely on reasonable suspicion of impairment (employee is demonstrating signs of impairment in the workplace or while performing work for the company). Also, donâ€™t forget that these laws only apply to cannabis and employers can screen for other drugs any time they like.â™¦
Cristin Heyns-Bousliman, Esq., THRP, is Principal and Practice Leader, Human Resources Consulting for REDW LLC. 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.