The Hispano Chamber provides this FAQ document as a serviceThis is not legal advice.

What New MexicoEmployers Need To KnowAbout Medical Marijuana and Workers’Compensation

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While the medical cannabis program has been operating in New Mexico for more than a decade, the program continues to evolve. Many employers are still unsure about what they can and can’t do with respect to employees’ lawful medical marijuana use. Many of these questions stem from the different expectations employees may have (in part because statelegalization varies and is changing), the differences between state and federal law, a competitive labor market, and the complexity created by “overlapping” laws such as New Mexico’s Human Rights Act, laws protecting use formedical purposes away from work, and complicated workers’ compensation laws. The unique nature in which marijuana metabolizes in the body can make workplace drug policies difficult to write and enforce, in part because while the presence of marijuana may be measurable, impairment might not be detectable. With the possibility of recreational marijuana use on the horizon, it is more important than ever for employers to understand whatemployee use may mean for their business. As New Mexico’s largest workers’ compensation provider, New Mexico Mutual has extensive experience in working with employers on workplace safety, responding to workplace accidents involving cannabis use, navigating the return to work requirements, and managing benefits for injured workers who qualify for medical cannabis use. New Mexico Mutual, in partnership with the Albuquerque Hispano Chamber of Commerce—the state’s largest chamber of commerce, has developed this FAQ to help small businesses and employers understand some of the legal issues surrounding the medical marijuana program in New Mexico. 1

1This FAQ is intended to work as a general information resource for small businesses and is not intended to convey legal advice. You

should consult with an attorney if you need such advice. The Albuquerque Hispano Chamber of Commerce makes no representations or

warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the

content of this or any other FAQ. Any reliance you place on such information is therefore strictly at your own risk. The Albuquerque

Hispano Chamber of Commerce and New Mexico Mutual are not liable for any loss or damage in connection with the use of this guide.2

The Hispano Chamber provides this FAQ document as a serviceThis is not legal advice.

Not always. Under New Mexico law, an employee with a valid medical use card has certain protections for using marijuana for medical purposes away from work. However, an employer may take disciplinary action for medical use away from work if allowing an employee to use medical marijuana away from work would jeopardize federal funding, or if the employee’s position is “safety sensitive.” Employers could face civil liability for disciplining an employee for medical use outside of work if one of theseexceptions does not apply. Employers should consult with their legal and HR professionals whendetermining whether a position is considered “safety sensitive.”

With a legal medical marijuana program in New Mexico, can employers still enforce

drug-free workplace policies that prohibit any marijuana use by their employees?

The law still recognizes an employer’s right to maintain a drug-free workplace, which means employees do not have a right to possess or use marijuana at work or to be impaired at work. When it comes to use outside of work, however, it is more complicated. While an employer may prohibit non-medicalmarijuana use by employees outside of work, New Mexico law creates some protections for validmedical use outside of work. These are discussed in more detail below.

Don’t employers have to allow medical use of marijuana by their employees, if it is

outside of work?

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The Hispano Chamber provides this FAQ document as a serviceThis is not legal advice.

The employees workers’ compensation claim cannot be denied solely for a positive drug test, but it is possible that indemnity benefits may be reduced between 10-90% of the worker’s compensation rate, to the degree that the intoxication or influence contributed to the accident. (NMAC 52-1-12.1). Regard-less of impairment, the injured worker will still be eligible for full medical benefits, provided the injury falls within the Workers’ Compensation Act. In order to see any reduction in indemnity benefits for intoxication, however, the Workers’ Compensa-tion Law requires that the Employer: 1) have a written policy declaring a drug-free workplace; 2) distribute this policy to the workforce;3) provide notice to employees that if drug use or intoxication is found to contribute to a workplace injury, that their benefits may be reduced. Absent such a policy, the Employer is barred from taking a reduction in benefits. We recommend that you consult your legal and HR professionals to ensure that you have a qualifying policy in place.

If my employee gets injured on the job, should I require a drug test to see if

there is marijuana in their system?

There are a number of reasons an Employer may wish to test employees after an accident. Employers are free to implement policies that require a drug test immediately following a workplace accident. Some policies require a drug test after every workplace accident, and others only require testing if the employer reasonably suspects that marijuana or some other substance may have been a factor in the accident. Regardless of how or when the Employer chooses to test, Employers should clearly state their drug policies for employees at the time of their hire, and it is important that they administer the policy consistently for their entire workforce. Employers should also ensure that drug-testing policies do not inadvertently discourage employees from reporting an accident or making a workers’ compensation claim—reporting of accidents should be mandatory.

Am I still liable for workers’ compensation if my employee tests positive for

marijuana following an injury?

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The Hispano Chamber provides this FAQ document as a serviceThis is not legal advice.

This fact pattern does not change the analysis, which is that the workers’ indemnity benefits could be reduced by 10-90%, provided that intoxication or influence is found, through proper evidence, to have contributed to the work injury. This case illustrates why testing alone is typically insufficient to show that marijuana use contributed to the injury. Tests may detect the presence of THC in a worker’s system long after use, when they are not experiencing any impairment. A thorough claims investigation will be key to discovering evidence of whether and to what extent intoxication or influence contributed to the

Note: The information contained in this guide should not be considered legal advice of any kind. Please consult your attorney for advice on

the application of the law to the specific facts of your case or legal problem.

How can an employer prove that the employee’s marijuana use led to the injury?

Evidence of whether marijuana use contributed to an injury is difficult to assess and is going to be based on all of the evidence obtained through the claim investigation. Test results that conform to accepted medical standards and performed by a certified laboratory may be used, but testing alone will not prove intoxication or influence from marijuana use. A determination will also requirewell-developed accident facts, such as worker and witness statements, circumstantial evidence, video, or other evidence of behavior or impairment.

What if my employee gets injured on the job and a drug test shows THC in her

system but she says that she smoked a week before the injury and was not

impaired at the time she got hurt? Should her benefits still be reduced?

The New Mexico Court of Appeals and the New Mexico Supreme Court have affirmed that the use of medical cannabis in treatment for a workplace injury may be covered by New Mexico workers’compensation law. The New Mexico Workers’ Compensation Administration (WCA) has established rules upon which the Worker can be reimbursed for cannabis use, with demonstrated compliance. NMAC 11.4.7.9 (D). The WCA has also established a fee schedule to control and limit the cost of the reimbursement.

What if a doctor recommends medical cannabis, rather than opioids or other

medications, as a treatment for a workplace injury?

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The Hispano Chamber provides this FAQ document as a serviceThis is not legal advice.

Note: The information contained in this guide should not be considered legal advice of any kind. Please consult your attorney for advice on

the application of the law to the specific facts of your case or legal problem.

ahcnm.org newmexicomutual.com

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