In August, a woman who worked in the state government’s Personnel Office filed a lawsuit alleging she was harassed, then fired, because of her participation in the medical marijuana program.
Valerie Romero maintains she lost her job based on a positive drug test after having to put up with suggestions that she change her lifestyle or try “faith-based” remedies for her post-traumatic stress syndrome instead of using medical marijuana. She says she was told she could lose custody of her children and be fired for being on medical pot.
But in its recent court response, the Personnel Office maintains that Romero was not reprimanded for her choice to use marijuana away from the workplace. Essentially, the state asserts that Romero crossed a line when she came to work stoned – with “glassy eyes, a happy and sedate affect” and “an overall difference in her normal behavior.”
Her condition “demonstrated reasonable suspicion” that she was impaired, the Personnel Office maintained. The office says she came to work not “fully capable” of performing her duties – which Romero denies in her lawsuit.
It said state law and public policy do not “prevent an employer from enforcing reasonable drug policies to discipline employees who show up impaired for work.”
The case, when resolved, could provide guidance for both patients and employers, both public and private. Business leaders interviewed for this story say they haven’t staked out a position on how to handle legal use of marijuana in workplace situations.
New Mexico’s medical marijuana statute contains a provision that says the statute does not protect patients from civil or criminal penalties for use or possession of cannabis in the workplace, but it doesn’t address the issue of impairment while on the job from medical pot used at home or elsewhere.
The state Department of Health – which administers the medical marijuana program, with more than 8,000 patients now enrolled – says on its website that there are “no protections specifically provided” in state law for medical pot users when it comes to either housing and employment.
But Santa Fe attorney Steven Farber, a member of the National Organization for the Reformation of Marijuana Laws, said patients should have some protections under the state law as it is written right now.
In a section on exemptions from criminal and civil penalties, the New Mexico statute says a qualified patient can’t be arrested or be subject to “penalty in any manner” for using medical pot.
“I think losing your employment can be construed as a penalty ,” Farber said.
The law does say patients aren’t exempt from laws against driving while impaired and can’t use medical pot in certain places, such as school buses, school grounds and parks, as well as in the workplace. The statute does not define “workplace.”
Impairment as issue
Eugene Moser, director of the State Personnel Office, said in a telephone interview that he couldn’t comment about the pending lawsuit.
However, he said there wasn’t a prohibition on employees of the Personnel Office being part of the medical pot program, which he likened to people being on other kinds of prescription drugs.
But if an employee was impaired by drugs – including, say, a prescription drug like Percocet- and came into work and was dealing with the public, then that employee would be subject to discipline, Moser said.
“There’s no statewide policy, nor does our office have a policy on the medical cannabis program,” Moser said. But he said “employees can’t come to work impaired.”
A spokesman for Gov. Susana Martinez did not respond to messages seeking to clarify whether her administration has a position on state employees in the medical cannabis program. Martinez, during her 2010 gubernatorial campaign, said she would seek a repeal of the state’s medical marijuana program if elected, but she has not proposed legislation to do so.
Kris Hermes, a spokesman for the Americans for Safe Access group that advocates for therapeutic use of marijuana, says New Mexico is like some other states with medical cannabis laws in that it has an “implicit” protection for patients to use pot away from their jobs because the law specifically states they can’t use or possess marijuana at work.
“They can consume it in their own home; they just can’t be impaired at work,” Hermes said.
But Hermes said members of cannabis programs in other states haven’t fared well in court. Judicial rulings in states with medical marijuana programs suggest an employee can still be fired for failing a drug test, even if that employee was legally using cannabis as medicine.
The Sacramento Bee wrote about a California Supreme Court ruling in 2008 against an employee who was fired as a systems administrator from a telecommunications company after failing a drug test.
The court’s opinion stated that nothing in California’s law suggested the state’s voters meant the medical marijuana measure to address the rights of employers and employees.
In September, a federal appeals court upheld the firing of a Walmart worker who used medical pot in Battle Creek, Mich. The employee was fired after failing a drug test, according to an Associated Press story. The ruling indicates that the law in Michigan offers some protection in criminal cases but not to people in the workplace.
And in June 2011, Time magazine reported, Washington’s state Supreme Court ruled employers could dismiss employees if they fail drug tests even if they were in the medical cannabis program and even if their use didn’t affect job performance.
Those cases all involved workers in the private sector. Matthew Gonzales, vice president of government affairs for the New Mexico Association of Commerce and Industry, said he was unaware of any similar private sector cases in New Mexico.
He said the association doesn’t have a position on the issue, but New Mexico’s medical marijuana program and the recent vote in Colorado to legalize marijuana for recreational use may change that soon.
“I’m sure it’s something we’ll have to dive into, but it’s not something that’s at the forefront,” Gonzales said.
Simon Brackley, president of the Santa Fe Chamber of Commerce, said he was also unaware of medical marijuana becoming a workplace issue at this point. “We haven’t found a need to take a position on the issue,” he said.
Hermes said the “implicit” protections in New Mexico’s statute aren’t sufficient and that some other state marijuana programs, such as Arizona’s, explicitly prevent patients from being fired unless the employer’s failure to do so would cost the employer a monetary or licensing benefit under federal law.
“New Mexico should respect workers’ rights in regard to their status as a patient,” Hermes said. “It’s frankly none of the employer’s business unless (the patient) works in a safety-sensitive position or somehow their marijuana use jeopardizes their role as a worker.”
— This article appeared on page A1 of the Albuquerque Journal