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Medical Marijuana In The Workplace

Published on NewsOK Modified: December 3, 2012 at 7:16 am •  Published: December 3, 2012

Medical Marijuana In The Workplace

Bill Rodgers

Albuquerque Journal, N.M.

SANTA FE -- New Mexico has had a medical marijuana program since 2007. But the question of how the legalization of medical pot could affect workplace policies against drug use is just now coming to the fore.

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."

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."

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