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."
©2012 Albuquerque Journal (Albuquerque, N.M.)
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