New Mexico lawmakers came very close to legalizing the recreational use of marijuana in 2019. Just four senators’ votes stood in the way.
But that could change in 2020. Gov. Michelle Lujan Grisham is planning to put cannabis back on next year’s legislative agenda. If it passes, a new reality filled with unknowns will confront business leaders.
With the drug’s use still prohibited under federal law, legalization would compel companies to decide which law, state or federal, to follow. Attorney General William Barr has asked Congress to solve this dilemma by eliminating all discrepancies between the federal and state statutes. We’re cautiously optimistic that this will happen, but the dilemma will still be with business leader as we wait.
Another question yet to be settled has to do with workplace drug policies. If New Mexico were to greenlight recreational marijuana, would zero-tolerance policies still be legal?
Currently, a 2016 decision by the U.S. District Court of New Mexico indicates that employers may not be forced to violate federal law and could therefore set such zero-tolerance workplace policies. This could change if the federal government de-classifies marijuana or re-classifies it as something other than a Schedule I controlled substance.
But the number of workers able to pass a drug test is shrinking, and a zero-tolerance policy could narrow the list of qualified candidates. Companies have begun relaxing their marijuana policies in response, even as studies cited by the National Institute on Drug Abuse suggest a higher risk for injuries and accidents among users.
This raises another question. If an employee were to have an accident at work, test positive for THC and get fired, would the business owner have to provide unemployment benefits? The answer isn’t clear.
And what if a business owner were to suspect an employee of coming to work high? There’d be no reliable way to prove it, since our current testing isn’t able to detect marijuana impairment.
If New Mexico does legalize recreational marijuana, the new law is likely to answer some of these questions. Others will get sorted out in the courts, but the process could take years. In the meantime, here are some things that businesses can do to start preparing, just in case.
Craft a clear, defensible drug policy. Work with your employment attorney to develop a policy tailored to your specific business needs and operations. For instance, you may need to set stricter policies if your business has significant transportation or safety risks, or relies on federal projects and dollars. A cookie-cutter policy won’t do, especially as federal, state, and local laws are likely to change in the coming years.
Ask your attorney for guidance on the proper way to train and notice employees on these types of policies. And have the attorney review and update the policy annually, as laws will continue to change both in the state and in Washington, D.C.
Look to the 2019 act for clues. You’ll find the full text of HB 356, the Cannabis Regulation Act, at nmlegis.gov. Pay special attention to Section 24, which addresses employers’ rights and obligations. While next year’s legislation could be different, the act will give you a feel for the issues.
Stay informed. The legal landscape for marijuana keeps changing, and what you don’t know could hurt your company. For updated information, subscribe to the marijuanareport.org.
By: New Mexico Mutual (ABQ Business Journal)
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