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New Mexico Recreational Cannabis: Drug Testing Impacts April 2021

On April 12, 2021, New Mexico Governor Michelle Lujan Grisham signed a bill legalizing recreational marijuana, the “Cannabis Regulation Act.”[1] With this development, New Mexico joins many other states that have legalized recreational cannabis for adults 21 and older. The use of cannabis for medicinal purposes was previously authorized in New Mexico by the Lynn and Erin Compassionate Use Act, which was passed in 2007.[2]

The Cannabis Regulation Act authorizes adults to possess no more than two ounces of cannabis, 16 grams of cannabis extract and 800 milligrams of edible cannabis if it is stored at home or out of public view. An individual may keep up to six mature cannabis plants at home. People over 21 can begin growing cannabis at home on June 29, 2021.

The new law specifically permits employers to implement, continue and maintain certain fundamental drug-free workplace rules and policies to ensure employee safety. Specifically, the new law does not: 1) restrict an employer’s ability to prohibit or take an adverse employment action against an employee for impairment or possession of “intoxicating substances” at work or during work hour; and, 2) does not interfere with an employer’s ability to maintain rules and policies in compliance with federal law and regulations or require an employer to take any actions that will potentially result in the loss of federal contracts or funding.

Moreover, an employer may continue to adopt and implement a written “zero tolerance policy regarding the use of cannabis products, and such a policy may permit employers to discipline or terminate the employment of an employee on the basis of a positive drug test that indicates any amount of delta-9-tetrahydrocannabinol or delta-9-tetrahydrocannabinol metabolite.”

While not effective until June 29, 2021, New Mexico employers should review their drug testing policies (or reinforce the same). 

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice.  The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.

[1] [1] Sources:  Current Consulting Group and the law

[2] [2] It is important to note that this new recreational cannabis law does not affect the New Mexico marijuana statute.

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