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Medical cannabis law changes may spark confusion

Hailey Salazar, an assistant grower at Verdes Foundation, inspects grown marijuana plants for bugs and male flowers June 11. Changes to the state’s medical marijuana laws takes effect this month. (Adolphe Pierre-Louis/Albuquerque Journal)

Copyright © 2019 Albuquerque Journal

SANTA FE – Changes to New Mexico’s medical cannabis laws that took effect this month include a provision aimed at giving more workplace protections to the more than 70,000 individuals enrolled in the program statewide.

But some leading business groups are concerned the changes could actually create more confusion when it comes to how drug-free workplace rules are enforced – and how employers use drug testing to screen job applicants.

“The new language makes it more vague as to when an employer may create a federally compliant drug policy,” said Rob Black, the chief executive officer of the New Mexico Association of Commerce and Industry.

Sen. Gerald Ortiz y Pino, D-Albuquerque, the bill’s sponsor, said the legislation signed into law in April by Gov. Michelle Lujan Grisham was an attempt to clarify that medical marijuana licensees cannot be fired simply for testing positive for cannabis, as the drug can remain in a user’s system for weeks.

“Just because you failed a drug test, they can’t dismiss you,” Ortiz y Pino told the Journal.

He said the changes are not intended to render drug-free workplace policies untenable, but acknowledged lawmakers may have to revisit the issue in the future to further fine-tune language in the law.

The new language in question includes two sections, the first of which says it is unlawful in most circumstances for an employer to fire or otherwise discipline a worker based on allowable conduct under the state’s medical marijuana program.

A flowering marijuana plant at Verdes, one of the longest operating dispensaries in New Mexico. (Adolphe Pierre-Louis/Albuquerque Journal)

It’s unclear whether this would affect employers with policies that require drug testing of applicants before they are hired, with a positive test precluding their hiring regardless of whether they have a medical marijuana card.

Meanwhile, the second section specifies that employers can still establish policies barring use of medical marijuana on the job or showing up under the influence – and take action against employees who violate the policy.

Terri Cole, the president and CEO of the Greater Albuquerque Chamber of Commerce, said problems could arise depending on how those two sections of the law are interpreted.

“Anything that would limit an employer’s ability to enforce their drug-free workplace programs would be problematic,” Cole said in an interview. “It certainly needs clarity for the business community.”

A spokesman for the New Mexico Department of Health, which runs the medical cannabis program, said this week the agency does not have an enforcement role when it comes to employment protections in the new law.

“Any disputes between employers and employees regarding that passage would need to be resolved through their employment process or through the courts,” agency spokesman David Morgan said.

He also said DOH’s stance is that private employers could still consider the result of drug tests and take disciplinary action against an employee for enrollment in the medical cannabis, but only in certain circumstances. Such circumstances could include an employee who works in a “safety-sensitive position.”

Enrollments could spike

New Mexico launched its medical marijuana program in 2007 – the law is officially called the Lynn and Erin Compassionate Use Act – and the number of people enrolled in the program has skyrocketed in recent years.

There were 73,350 active patients around the state as of May, compared with 48,861 in September 2017.

Enrollment in the program could see another spike in the coming months, as Health Secretary Kathy Kunkel earlier this month approved adding six new qualifying conditions – including opioid use disorder, Alzheimer’s disease and autism.

Meanwhile, in addition to the employment protection language, the bill signed by Lujan Grisham in April also makes other changes to the medical marijuana program. Those changes include:

• Allowing medical marijuana in schools, under certain circumstances.

• Extending the length of an approved patient identification card from one year to three years.

• Stipulating that a licensed medical marijuana user cannot be denied an organ transplant on the basis of their participation in the program.

“This is probably the most significant year in the program since its inception,” said Duke Rodriguez, the president and CEO of Ultra Health LLC, a licensed medical cannabis producer, during a recent meeting with Journal editors and reporters.

Other marijuana issues

Changes to New Mexico’s medical cannabis program were not the only marijuana-related legislation considered by lawmakers during this year’s 60-day session.

Lawmakers also passed a separate marijuana decriminalization bill that starting today will make possession of small amounts of marijuana – a half-ounce or less – a penalty misdemeanor subject to a $50 fine.

In addition, several bills aimed at legalizing recreational cannabis use were debated at the Roundhouse but ultimately failed to pass. But Lujan Grisham has said she plans to add the issue to the agenda of next year’s 30-day legislative session.

Illinois recently became the nation’s 11th state to legalize recreational marijuana use and tax its sales.

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