The New Mexico medical marijuana law has been amended to provide employment protections to employees and applicants. The amendments were signed into law by the governor on April 4, 2019.

The law now provides that “unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, it is unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under [the medical marijuana law].” The law also expanded the definition of a “debilitating medical condition” for which individuals may use medical marijuana.

Employers still are permitted, however, to take adverse employment actions against an employee for “the use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment.” The law does not define what “impaired by” means, and does not address positive drug test results.  In addition, medical marijuana users are not protected from criminal prosecution or civil penalty for possession or use of marijuana in the workplace.

These new employment protections do not apply to employees deemed by the employer to work in a safety-sensitive position. “Safety-sensitive position” is defined to mean a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.

New Mexico employers should review their drug testing policies to determine whether any revisions are warranted and should train the appropriate managers to respond to employment issues involving medical marijuana, such as requests for accommodations and positive drug test results.

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Photo of Kathryn J. Russo Kathryn J. Russo

Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.

Ms. Russo assists clients with workplace problems involving drugs and alcohol, and gives advice about compliance with all pertinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S. Department of Transportation), as well as the drug and alcohol testing laws of all 50 states. In addition, she defends employers in litigation where drug and alcohol test results are at issue, and frequently conducts “reasonable suspicion” training for employers in connection with their substance abuse policies. Ms. Russo also counsels employers on leave and disability management issues arising when employees seek leave for substance abuse rehabilitation.

In addition to her workplace substance abuse practice, Ms. Russo concentrates her practice on employment litigation, defending employers in federal and state courts and before administrative agencies and arbitration panels in litigation related to employment discrimination, retaliation, wrongful discharge, whistleblower, wage-hour and related tort and contract claims. Ms. Russo advises clients on compliance with various state and federal laws affecting the workplace, including Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and New York State and City laws, among others. She guides clients through internal investigations, disciplinary actions and medical leave issues, and prepares workplace policies and employee handbooks. Ms. Russo frequently lectures and conducts management training for employers on a wide variety of employment law topics, including EEO/anti-harassment, FMLA, ADA, substance abuse, drug testing and privacy issues.

Prior to joining Jackson Lewis, Ms. Russo worked for a law firm in New York City, where she litigated general commercial disputes, employment matters, legal malpractice cases, and defended attorneys and physicians in disciplinary proceedings.

While attending law school, she was the Articles & Commentary Editor for the Fordham Urban Law Journal.