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Marijuana In The Workplace - Here's What You Need To Know

What's the legal status of marijuana use?

Although marijuana use violates federal law, many states have passed laws legalizing marijuana. Restrictions vary widely by state; some states only allow medical marijuana, while others have legalized recreational marijuana. State laws may do one of the following:

  • Legalize medical marijuana, meaning an individual may defend against criminal charges if he or she can prove a medical need for marijuana under state law

  • Legalize the possession and use of recreational or medical marijuana

  • Decriminalize marijuana, meaning penalties for possession and use of small amounts of marijuana may be reduced

Marijuana use remains illegal under the federal Controlled Substances Act, however, the state of New Mexico has adopted laws that allow certain individuals to use marijuana for medical or recreational purposes in the state.

How does this impact employers?

The New Mexico Cannabis Regulation Act (CRA) specifies that recreational marijuana use 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 or infringe upon the rights of an employer to adopt and implement a written zero-tolerance policy regarding the use of marijuana products.

Enacted in 2007, New Mexico's Lynn and Erin Compassionate Use Act (CUA) allows certain individuals, called "qualified patients" to use marijuana for medical purposes in the state. The CUA specifies that, unless compliance would result in the employer’s loss of any monetary or licensing-related benefit under federal law or regulations (such as the federal regulations that apply to employers in the commercial transportation industry, for example), an employer is prohibited from taking any adverse employment action against an individual based on conduct that is allowed under the CUA.

In general, this means that employers may not discriminate against an individual based solely on the fact that the individual is a qualified patient or tests positive for marijuana. However, the CUA also makes clear that employers are not restricted from prohibiting or taking adverse employment actions against an employee for using or being impaired by marijuana on the premises of the place of employment or during the hours of employment.

You may want to take this opportunity to review your drug policies and consider amending existing drug policies to clarify that any use of marijuana is prohibited, regardless of recreational or medical use. You should also review your drug policy in conjunction with state regulations to ensure that you are not violating any nondiscrimination laws.

Questions, concerns or would like expert help?

Reach out to our team at Menicucci Insurance Agency - we are here as a trusted resource for you and your business. Call us at (505) 883-3683 or contact us at


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