Mike Gallagher

Albuquerque Journal

In New Mexico, employees with medical cannabis cards have been fired because they tested positive for marijuana at work.

Federal and state judges in three cases have ruled in favor of the employers, basically finding that the workers are not protected under federal or state law for using marijuana in violation of company policies.

"There are no protections right now in New Mexico for workers who use medical marijuana legally," Albuquerque attorney Jason Bowles said.

And certainly not for recreational pot.

Bowles, who has lectured on the topic, said other states have put in place minimal protections for employees.

That could happen here under proposed legislation to legalize recreational marijuana use that would include some protections for workers who use marijuana — medical or recreational — outside the workplace.

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Those provisions are sure to concern businesses, law enforcement officials and others.

The legislation would make it unlawful for a business to take adverse action against an employee for off-premises conduct that is lawful or for a positive drug test for cannabis — unless the employer could show "by a preponderance of evidence that an employee's lawful use of cannabis has impaired the ability to perform the employee's job."

The proposals — contained in the working draft of the bill to legalize marijuana — have some limits. They don't, for example, protect someone from possessing or using intoxicating substances such as marijuana or alcohol during working hours. And there would be protection for businesses from committing any act in violation of federal law or that would result in the loss of a federal contract.

It would also provide some protections on school grounds.

The bill says that no school may penalize a person solely for conduct allowed by the law legalizing recreational marijuana use or the medical marijuana statute — unless failing to do so would cause the school to lose money or other benefits under federal law or regulation.

School officials have been in a quandary about what to do about children taking medical marijuana products for medical problems such as epilepsy, one of the approved medical conditions under the state's medical marijuana program.

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The U.S. Food and Drug Administration has approved one drug containing THC, the psychoactive ingredient of marijuana, for certain types of epilepsy but expects a limited number of patients to receive the drug.

Medical marijuana

When the New Mexico Legislature passed the Lynn and Erin Compassionate Care Act establishing a regulated medical marijuana system in 2007, it didn't address the hot-button workplace legal issue.

That statute legalized the use of marijuana to treat serious health conditions.

Although some states have included in their medical marijuana statutes a mandate that employers accommodate holders of medical marijuana cards, New Mexico's medical marijuana law did not.

Arizona and other states required "reasonable accommodations" by employers to accommodate medical marijuana use after making a "holistic determination of the nature of the job" and possible accommodations that could help the employee successfully manage those duties.

These provisions provide an exception if it would compromise the safety of the worker or another person.

This exception for "safety-sensitive" employment positions is invoked when the job involves driving, operating heavy machinery or other high-risk activities.

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The Arizona law says an employee can't be fired for using medical marijuana use outside the workplace, absent a showing of high-risk job duties, on-the-job intoxication or marijuana use on the job site.

Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York and Rhode Island have statutes that explicitly prohibit employment discrimination against medical marijuana users, similar to the one in Arizona.

Lawsuits in New Mexico

Three workplace lawsuits have been filed in New Mexico on behalf of employees who were fired because they used medical marijuana.

In all three cases, the employees lost.

Donna Smith, a physician assistant, sued Presbyterian Healthcare Services after she was fired shortly after she was hired at an urgent care clinic because she tested positive for marijuana during a routine company drug test.

Smith claimed Presbyterian violated her rights under the state law by wrongfully firing her due to her medical condition — PTSD.

The state court ruled that Presbyterian could fire Smith because she did not inform Presbyterian of her disability or request an accommodation. Because she hadn't asked, the court didn't have to decide whether her employer had to make an accommodation.

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Rojerio Garcia told his new employer Tractor Supply Co. that he was using medical marijuana for a serious medical problem, but he was fired after testing positive.

His lawsuit for wrongful termination under the federal disabilities law and state human rights law was transferred to federal court.

U.S. District Judge William "Chip" Johnson found that requiring employers to accommodate medical marijuana use under state law would conflict with the federal Controlled Substances Act. The case was dismissed.

Bernalillo County Metropolitan Detention Center Lt. Augustine Stanley was fired when he tested positive for marijuana during a random drug test of jail officials.

He filed a civil lawsuit in federal court.

Stanley claimed that he used medical marijuana only after work for PTSD, and that his supervisors never noticed any negative effects in his performance. He alleges the county violated his rights under the Americans with Disabilities Act and the state human rights law by refusing to accommodate his condition.

U.S. District Judge James Browning dismissed Stanley's federal claims and sent the rest of the case back to state court, where state District Judge Carl Butkus dismissed the remaining counts.

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