A bill that would legalize recreational cannabis in New Mexico includes workplace protections for employees that use pot while off the job. The bill by Albuquerque Democrats Sen. Jerry Ortiz y Pino and Rep. Javier Martinez is expected to be introduced in the legislature later this month, according to media reports.

The bill that legalized medical marijuana in New Mexico in 2007 did not address the issue of employees using cannabis while not working. Consequently, some patients have been fired after testing positive for cannabis use in workplace drug tests. Those that have challenged their termination in court have not been successful. Many states with legal medical marijuana, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, and Rhode Island have workplace protections for patients. Albuquerque attorney Jason Bowles believes that his state should follow suit.

“There are no protections right now in New Mexico for workers who use medical marijuana legally,” Bowles said.

Provisions in a draft of the legalization bill make it illegal to take adverse action against employees for a positive drug test for cannabis or for legal conduct outside of the workplace. Workers would not be protected if employers 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 bill would not protect employees who use or possess cannabis at work. Some exceptions for businesses and schools for action taken to comply with federal law are also included in the working draft of the bill.

Broad Legalization Measure

The bill by Ortiz y Pino and Martinez is a broad cannabis legalization measure that would permit the use and sale of recreational marijuana. The measure would allow the personal cultivation of up to six cannabis plants and establish a framework for the regulation and taxation of commercial cannabis production and sales. Local jurisdictions would be required to decide whether to allow cannabis dispensaries through elections. In addition to the employee provisions, tenants, parents, and students would be protected from sanctions for using cannabis either recreationally or medicinally.

Vermont is the only state that has legalized the recreational use of cannabis through action by the legislature. All other states that have legalized the adult use of pot have done so through the citizen initiative process. Despite polls that show support for cannabis legalization in New Mexico, Ortiz y Pino believes it may be difficult to get the bill passed by the legislature.

“It’s going to be tough,” said Ortiz y Pino. “The House will probably vote for it. The Senate is going to be its usual thirty-years-behind-the-times self.”

“I think it’s a generational or a cultural thing more than anything,” Ortiz y Pino added, noting that the average senator is older than most representatives.

Emily Kaltenbach, the director of the New Mexico chapter of the Drug Policy Alliance, said that experience with previous unsuccessful cannabis legalization efforts in New Mexico shows it won’t be easy to get the bill passed.

“We have yet to get a piece of legislation through both chambers,” Kaltenbach said. “So even if the governor is open to signing a bill, that doesn’t mean that in this next year there is something [going] to the governor’s desk.”