With recreational use of marijuana now legal at the state level, and municipal governments adopting ordinances to regulate the new type of business, employers are still not jumping to change their employee drug-use policies — and legally, they don’t have to.
According to the New Mexico Cannabis Regulation Act, which was passed earlier this year during a special legislative session, employers are allowed to prohibit the use and possession of marijuana, or any other intoxicating substances during work hours.
Additionally, the state law protects employers who chose to establish a zero-tolerance policy for employees regarding marijuana use — medical or recreational — allowing termination if a drug test comes back positive.
Orlando Montoya, the Human Resources director for Valencia County, said after talks with their attorneys, the county currently has no plans to update their employee drug-use policy, which was last updated in 2006.
“With the government, it’s really easy for us because not only do we have to follow state law, we have to follow federal law,” Montoya said. “And with the feds, (the recreational use of marijuana), it’s still illegal. We receive large amounts of grant money, federal money comes in … So, with the feds, it’s a no.”
Still, with the majority of county employees, only a pre-employment drug test is required to be offered a job with them. The only employees required to undergo random drug-testing are safety-sensitive employees, such as law enforcement officers, detention officers and employees required to operate heavy machinery.
According to the Mayo Clinic, marijuana can be detected on a drug test up to three days following a single use and up to 30 days for an habitual user.
While with some employees, medical use of marijuana can be addressed on a case-by-case basis, Montoya said with safety-sensitive employees, any marijuana use is prohibited.
“With everything with these laws, there is always an exception, especially on the medical side,” Montoya said. “Recreational, there are no protections. You are not protected from anything as an employee.”
Montoya said leadership within the county began attending trainings to identify when someone is impaired due to cannabis use while on the job, as well as learn how to properly document probable cause to order an employee to drug test.
“Probable cause doesn’t mean that I walk in, ‘Hey, you look a little funny, go for your drug test,’” he said. “It’s got to be documented and you have to display and prove that probable cause to us.”
Probable cause can only be established if an employee shows up to work impaired, and the county is not regulating employees who chose to use it in their free time.
“… We are not in the business of telling people what to do outside of work,” Montoya said. “It’s not our job. We are not trying to infringe on anybody.
“When you are off the clock, as long as you are following the law, that’s your business and we are all for that.”
For a smaller business, such as Rio Grande Financial Network in Los Lunas, drug testing becomes more difficult, according to owner Yvonne Sanchez.
“We are a smaller, family-owned business, so we don’t drug test,” Sanchez said. “There are four of us working here — me and my mom, my cousin and my best friend, so it’s a different environment, but it’s something that we’ve thought about as things, with the legalization and things changing.”
Sanchez said if the problem arises as they begin to hire more employees and expand, the business will approach the issue in a similar way as alcohol — on a case-by-case basis. Generally, employees are not allowed to drink or be intoxicated during work hours.
She said Rio Grande Financial Network would begin exploring updating their drug policy in their employee handbook.
“Right now, it doesn’t seem like it’s affecting us in terms of employees, but we are going to start to see it (affects) our clients because that is an issue,” she said.
When Sanchez works with clients, she sees insurance agencies, in particular, concerned with whether a business sells cannabis, even legally, affecting their insurability.
“That is a huge thing that people are not even aware of,” Sanchez said. “They want to open up a shop and sell cannabis, but they won’t be able to get insurance coverage. I just started noticing in the last couple months that it is a question when we are quoting.”
On the investment side, Sanchez is unable to open up retirement accounts for businesses that sell cannabis since the drug is not legal at the federal level.
Instead, as a small business owner and as the second-vice president of the Greater Belen Chamber of Commerce, Sanchez said her concerns lay instead with future locations of commercial cannabis businesses.
“Personally, I’m supportive of the cannabis industry, but I think we just need to, as a community, really be prepared,” Sanchez said. “I’m just concerned as a community. We just don’t want the other problems that could happen, like with crime.”