On April 12, 2021, New Mexico passed a law legalizing recreational marijuana. The new law legalizes the possession of and use of recreational marijuana for persons who are at least 21 years or older under certain circumstances. Legal sales could start in 2022.
With regards to employers, the law does not
- restrict an employer’s ability to prohibit or take an adverse employment action against an employee for impairment by or possession or use of intoxicating substances at work or during work hours;
- require an employer to commit any act that would cause the employer to be noncompliant with or in violation of federal law or federal regulations or that would result in the loss of a federal contract or federal funding; or
- prevent an employer from adopting and implementing a written zero-tolerance policy regarding the use of cannabis products. A zero-tolerance policy may permit the discipline or termination of an employee on the basis of a positive drug test.
Therefore, employers can still prohibit recreational marijuana at work and can implement testing policies to achieve that goal.
However, keep in mind that it is unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under the New Mexico Medical Marijuana law. There are a few exceptions, including use at the workplace. (The other exceptions are discussed here.) This prohibition essentially prohibits adverse action based on random and pre-employment marijuana testing because marijuana stays in the system for a long duration.
Consequently, medical marijuana and recreational marijuana are treated differently when it comes to employment and testing. One way to avoid this conflict would be to avoid random and pre-employment screening for marijuana. For questions on this new law and other New Mexico employment laws, contact Employers Council.