By Randy Robinson
Imagine your state finally legalized recreational, or adult-use, cannabis. You rush to a local dispensary, purchase a “Phattie” to celebrate, smoke it up, and go about your business. Then, the next day at work, you’re called in for a random drug test. You fail it and receive a pink slip.
Thanks for playing, you just lost your job, even though you did so within the confines of the new laws. New Mexico’s legislature recently introduced two bills to legalize adult-use of cannabis.
The bill pitched through the House is the Cannabis Revenue & Freedom Act. In the Senate, it’s the much simpler SJR 5, which spans only two pages. On the surface, legalization should be a clearand-cut issue. Prohibition gets lifted, the state reaps the rewards of legal cannabis, and everyone lives happily ever after. Unfortunately, it’s not that simple.
There’s the “spirit of the law,” then there’s the harsh, cold reality of the “letter of the law.” How the legislature writes these laws determines how the courts actually carry out these laws. Neither bill includes a provision to protect employees who medicate or consume recreationally.
The Senate bill only removes legal penalties for possession and use among adults 21 or older. The House bill specifically states employment laws and regulations will be unchanged by legalization. That legal cannabis use can be grounds for termination remains largely unresolved in pioneer states like Colorado and Washington.
New Mexico should learn from the lessons, otherwise it will be doomed to repeat them. Bearing Shame In almost every U.S. city and state, coming up hot on a drug test can be grounds for termination.
With cannabis at Schedule I, the most restrictive classification for drugs, employers enjoy a virtual carte blanche when it comes to firing workers who consume cannabis. Most states allow employers to deny their cannabis-consuming employees partial or full benefits, severance packages or even worker’s compensation.
This leaves patients in a horrifying bind: they must choose between the only medicine that is safe and effective for them or their jobs. Considering many of these patients depend on their employer’s health insurance, the choice becomes a quagmire of anxiety. Maine Concern In the quiet state of Maine, medical patients are considered a “protected class,” just like the disabled, women or ethnic minorities.
That means an employer cannot fire a medically-registered employee simply because that employee consumes cannabis. The only time when a Mainer can be fired for cannabis consumption is if that individual works in a “safety sensitive” position, such as heavy machine operation or driving trucks.
Maine has had this protection in effect for years, with no problems to date. Nor is Maine alone. District officials in Washington D.C., which voted in favor of legal recreational sales, are currently considering a proposal similar to Maine’s.
So-Called Leaders In Colorado and Washington, the first two states to legalize adult-use, cannabis patients and consumers possess zero protections when it comes to their right to work. Neither Amendment 64 (CO) nor I-502 (WA) protect patients from losing their jobs.
The most notorious case closed in Colorado last year with Coates vs. Dish Network. Brandon Coates, a paraplegic and former employee of Dish Network, was fired for failing a drug test at his office.
He filed suit against the company and claimed medical necessity as his defense. After all, cannabis is legal in Colorado, right?
He also claimed he never consumed cannabis at work, nor did he ever come into work while medicated – a claim that Dish Network never disputed in court. After three years of arguments, the state Supreme Court ruled in favor of Dish Network.
The court’s reason?
Cannabis is still federally illegal, therefore a national (or international) company such as Dish Network is within their rights to terminate cannabis patients like Coates for no other reason other than they consume a relatively non-toxic plant. Even if that place of business and its employee resides in a state that legalized cannabis.
That Coates was a stellar employee who excelled at his duties meant nothing. The Lesson Right now, New Mexico’s state legislature is pending two adult-use bills. Neither of these bills offers drug testing protections to employees.
It’s imperative that patients receive this protection under the law. New Mexico has some of the loosest regulations concerning drug testing at work, which means the state faces unfair layoffs despite taking the next big step in ending prohibition.
Even after legalization, employers remain within their rights to fire anyone who consumes cannabis – even if that consumption occurs off-site and off the clock. It’s too late to modify either legalization bill currently under consideration in New Mexico.
However, it’s not too late to put pressure on New Mexico’s legislature to introduce a new bill that will protect patient and consumer rights. Just as the lawmakers can lift prohibition, they can also ensure prohibition doesn’t create a new slew of problems for otherwise law-abiding.
