Marijuana - New Mexico

Medical marijuana

An employer cannot take an adverse employment action against an applicant or an employee based on conduct that is allowed under the state’s medical marijuana law, unless:

• This would cause an employer to lose a monetary or licensing-related benefit under federal law, or
• The employee works in a safety-sensitive position.

A safety-sensitive position is defined as 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 person.

An employer may prohibit the use of medical marijuana in the workplace and during the hours of employment, and may prohibit employees from being impaired by marijuana at work or during work hours. An employer may also take an adverse employment action against an employee who uses or is impaired by medical marijuana on the premises of the place of employment or during the hours of employment.

Recreational marijuana

The Cannabis Regulation Act legalized recreational marijuana in New Mexico. The act contains a number of protections for employers.

Under the act, an employer may:

• Prohibit impairment by, or possession or use of, intoxicating substances at work or during work hours,
• Take an adverse employment action against an employee for impairment by or possession or use of intoxicating substances at work or during work hours,
• Adopt and implement a written zero-tolerance policy regarding the use of cannabis products. A zero-tolerance policy may permit the discipline or termination of an employee on the basis of a positive drug test that indicates any amount of marijuana or marijuana metabolite.

An "adverse employment action" means refusing to hire or employ a person; barring or discharging a person from employment; requiring a person to retire from employment; or discriminating against an employee in compensation or in terms, conditions, or privileges of employment.

An employer is not required to commit any act that would cause the employer to be non-compliant with or in violation of federal law or federal regulations or that would result in the loss of a federal contract or federal funding.

The act does not interfere with an employer’s ability to establish a collective bargaining agreement with employees.

The Cannabis Control Division, which is located in the state’s Regulation and Licensing Department, administers the state’s cannabis regulations.