Experimenting with marijuana used to be a big no-no at the Santa Fe Police Department.
Under the department’s policy, anyone who wanted to join the police force — whether sworn or unsworn — automatically would be disqualified if they had smoked a joint, eaten a gummy or used marijuana in some other fashion within three years of applying for a job.
But that was before New Mexico legalized recreational cannabis.
Now, previous marijuana use no longer is a disqualifying factor for getting a job with city police — a major policy shift born out of the new law.
“With the legalization of recreational cannabis, maintaining the 3-year disqualifying factor would likely make an already challenging recruiting environment much more difficult,” Deputy Chief Ben Valdez wrote in an email. “This also would present the potential of losing out on well-qualified candidates.”
As New Mexico becomes the latest state in the nation to regulate recreational cannabis — part of an effort to diversify the economy and decriminalize a drug that is no longer considered so taboo — attitudes and realities about marijuana use continue to evolve.
That includes the workplace.
The city police department is among employers in the state that have already relaxed their drug testing policies, while others are reviewing them as a result of the new law, which went into effect a month ago. Formally known as the Cannabis Regulation Act, the law decriminalized the possession, use, production, transportation and sale of recreational marijuana in New Mexico.
To test or not to test
Attorney Joleen K. Youngers, a partner at Almanzar & Youngers, which has offices in Santa Fe and Las Cruces, wrote in an email that legalizing recreational use and possession of cannabis isn’t likely to give rise to new issues in the workplace.
“Employers can still forbid cannabis on the job with zero-tolerance policies, just as most prohibit other intoxicants, including alcohol, in order to promote safety for workers and customers,” she wrote. “Employers can take action against employees who violate that policy, including termination if warranted. In that sense, little will change. No one wants someone high on weed operating equipment in the workplace any more than they would want someone drunk doing so. It still comes down to safety on the job.”
But Youngers added she expects many employers are reviewing their policies to determine whether they need to be updated in light of the new law.
“Some may opt to change drug testing policies and procedures. Some may opt to restate existing rules to emphasize that the new law doesn’t give anyone a pass to show up to work impaired,” she wrote.
Emily Kaltenbach, state director for New Mexico’s Drug Policy Alliance, which advocated for the passage of the law, said it was “encouraging” to hear employers are, in fact, already reexamining their policies.
“Oftentimes, drug testing policies in the workplace most acutely impact working-class people and low-income people in blue collar jobs despite similar rates of cannabis use across all classes,” she said. “Absent evidence of drug use interfering with the person’s job performance, drug testing wastes money, invades privacy and cuts off paths to employment.”
The new law leaves it up to employers to set their own rules and it doesn’t prevent a zero-tolerance policy, on or off the job.
Nothing restricts “an employer’s ability to prohibit or take an adverse employment action against an employee for impairment by or possession or use of intoxicating substances at work during work hours,” the law states.
But what about employees who use cannabis at home after hours?
Unless they work in safety-sensitive jobs, which usually come with random drug tests, employees who use marijuana away from work probably have nothing to fear unless they get into an accident or are suspected of being high while on the clock.
Emphasis on the word probably.
Marijuana metabolites can be detected by urinalysis for up to 30 days after its use. That means employees who use marijuana are likely to come up positive if tested over the span of a month even if they didn’t use the drug during work hours.
Rules vary by position
Some employers are tweaking their drug testing policies as a result.
“With regard to pre-employment drug testing for non-safety-sensitive positions, the county will no longer include cannabis metabolites in the drug testing panel,” Santa Fe County spokeswoman Carmelina Hart wrote in an email.
The county conducts pre-employment drug screenings of all potential new hires, as well as random, after-accident and “reasonable suspicion” drug testing of existing employees.
While pre-employment drug screenings won’t include marijuana, the county will continue to test for cannabis when there’s reasonable suspicion or after a workplace accident for employees in non-safety-sensitive positions, Hart wrote. But if a drug test detects delta-9-THC or delta-9-THC metabolite, those employees would not be subject to disciplinary action for that reason alone under a proposal the county is considering, Hart wrote.
However, a positive drug test indicating marijuana use may be used as evidence in disciplinary proceedings “if relevant,” Hart wrote, adding the proposal must first be approved by labor unions representing workers in positions not considered safety-sensitive and the County Commission.
For safety-sensitive positions, such as sheriff’s deputies, firefighters and 911 dispatchers, the county’s drug testing policy will remain unchanged.
“A positive drug test indicating a detectable amount of delta-9-tetrahydrocannabinol or delta-9-tetrahydrocannabinol metabolite will continue to be grounds for discipline [for employees in those positions],” Hart wrote. “That is because of the risk posed by such employees working under the influence of drugs or alcohol and the fact that current tests are unable to distinguish between recent and remote use of cannabis.”
State government also is considering a new policy for employees who generally work outside public safety.
In state government, all candidates for safety-sensitive positions are required to submit to drug testing after an offer of employment is made but before the selection is final, Nora Meyers Sackett, press secretary for Gov. Michelle Lujan Grisham, wrote in an email.
“There is no requirement for candidates for non-safety-sensitive positions to submit to drug testing prior to final selection for a state position,” she wrote.
Sackett noted individual state agencies’ policies may impose more stringent drug testing requirements on new hires.
Sackett wrote the state is exploring “how to best hold employees accountable” for marijuana use. Ideas include revising personnel rules to exclude employees outside of safety-sensitive positions from a zero tolerance policy for marijuana use.
“In their current form, the board rules provide only limited ability to hold accountable employees who test positive for marijuana metabolites,” she wrote. “It is simple for employees to offer a ‘satisfactory explanation’ for the positive test — namely that they smoked or otherwise consumed marijuana legally while off duty sometime within the last month (whether for recreational or medical purposes) — and in that way protect themselves from any disciplinary or other consequences available under the rules.”
Law sparks review of existing policies
Some of the regions’s biggest employers in the private sector are mulling whether they need to change their policies.
“CHRISTUS St. Vincent [Regional Medical Center] has not changed its policy at this time and we are reviewing it in light of the new law,” spokesman Arturo Delgado wrote in an email. “No decisions have been made.”
Delgado wrote all new employees undergo mandatory drug screenings prior to being hired. Random drug tests have always been part of the hospital’s policy.
The artist collective Meow Wolf doesn’t conduct pre-employment drug screenings “unless required by third parties with whom we contract,” Didi Bethurum, vice president of marketing, wrote in an email.
However, alcohol and substance abuse screenings may be conducted when there is reasonable suspicion an employee is under the influence of alcohol or drugs “that could affect or has adversely affected an employee’s job performance or in specific post-accident situations and subject to any state laws,” Bethurum added.
Meow Wolf has no plans to change its policy.
The Public Service Company of New Mexico, the state’s largest electricity provider, doesn’t either.
While cannabis is legal in the state, the company’s employees may not be able to partake if they want to keep their jobs.
“At this time, we do not anticipate any changes to our drug testing policy given the legalization of recreational cannabis,” spokeswoman Sara Yingling wrote in an email. “We have [U.S. Department of Transportation] requirements for certain employees and will continue testing for all employees.”
At the city police department, potential employees will get a pass for prior marijuana use, but not if they continue to use the drug.
“Although prior cannabis use would not disqualify a candidate, if the candidate fails to pass a drug test during the pre-employment screening process they will be disqualified from the selection process,” wrote Valdez, the deputy chief.
“Furthermore,” he added, “the department has safety-sensitive classifications that prohibit the use of cannabis. So upon hire, employees are prohibited from consuming cannabis and remain subject to random urinalysis testing to ensure compliance.”
Valdez said the department worked with the City Attorney’s Office to update its policy.
“Without this change we would have a challenging time recruiting and onboarding new employees that are qualified and have talent to contribute to our organization,” he wrote.