New Mexico County Could Stop Punishing Off-Duty Marijuana Use By Government Workers Under Commissioner’s Plan

Nearly three and a half years after New Mexico’s governor signed legislation legalizing marijuana for adults, a Bernalillo County commissioner has announced plans to introduce a local measure that would treat off-duty cannabis use by government employees more like alcohol use.

Commissioner Eric Olivas told Marijuana Moment that the commission’s next meeting is November 12 and that he’s “committed to various folks that, pretty much hell or high water, that’s when I’m going forward with the resolution.”

The reform in the state’s most populous county, which includes Albuquerque, will come in two pieces, Olivas explained. The first will be a higher-level resolution that’s effectively a “statement of values,” he said, adding that there will “still need to be a companion policy change” to spell out details of the changes if they win the commission’s approval.

“I feel pretty good about this,” Olivas said when asked about how he thought the proposal would fare. “I think we have a very open-minded commission. I have some colleagues that I work very closely with on a number of other, unrelated issues.”

He added that he’s not able to “directly ask more than one of my colleagues whether or not they will support this” due to open meetings rules barring certain outside communication between officials.

The policy change would allow off-duty cannabis use by county workers, removing the risk that a positive drug test for THC alone would lead to discipline or termination. It would not condone or allow on-the-job impairment, though Olivas acknowledges that the lack of a reliable field test for impairment “is definitely the strongest sticking point.”

Nevertheless, he said he believes that the county’s “union leadership is all very supportive of this—and management even.”

While the changes would not apply to certain county positions, such as employees who are required to have commercial driver’s licenses (CDLs) or carry firearms as part of their duties, it would apply to nearly all other employees.

In terms of alcohol in the workplace, rarely does discipline stem from a positive blood test from alcohol, Olivas contends. More typically it’s a mixture of symptoms associated with alcohol intoxication.

“My understanding is that there’s some pretty good training out there, and there’s been some pretty good development of cannabis recognition and being able to recognize intoxication with that,” the commissioner said, adding that the reform could be an opportunity to retrain supervisors and co-workers alike to be more vigilant about on-the-job impairment, whether the result of substances, sleep deprivation or other causes.

“Especially in some of these public safety jobs, that’s really important—supervisors being aware of people’s health and anxieties and physical state, mental state,” he added. “And so I think this actually pushes us to do better.”

Olivas said that he’s proud and excited for Bernalillo County to lead the way.

“We will be the first community, the first government in the state of New Mexico, to do this kind of liberalization on cannabis policy,” he said.

Paul Walton, a firefighter in New Mexico, told Marijuana Moment that he believes the policy change, if approved, could pave the way for other jurisdictions to enact similar policies protecting off-duty cannabis use by public employees.

“I’ve been working on this project for almost two years now,” he said, explaining that he was first inspired by presentation from a Pittsburgh department that touched on discrimination around marijuana use, including of registered medical patients.

He pointed to Pittsburgh; Phoenix; Prince William County, Virgina; New York City and other areas around the country that have relaxed THC-related drug testing following legalization, for example eliminating random tests.

Walton said that while he understands the concern about irresponsible, on-duty use, consumption of marijuana while away from work can actually be therapeutic for many firefighters.

“Firefighters have a higher risk of pain and injuries” than typical workers, he explained. “They have a higher risk of cancer, higher risk of PTSD, higher risk of anxiety and higher risk of sleeping disorders.”

“We’re looking at a medication that can safely and responsibly be used away from work and can reduce a lot of these symptoms and ailments that come from the job,” he added, noting that compared to opioids or alcohol, “this is a good medication and another tool in the toolbox to help firefighters when they’re away from work, rather than using something that’s more harmful.”

He noted that cannabis can be particularly helpful for firefighters who have trouble sleeping—for example at the end of a long and traumatic shift—or ease hypervigilance and other symptoms of PTSD.

Separately, a recent report from the Centers for Disease Control and Prevention (CDC) looked five years of health survey data to determine which industries and occupations were most likely to self-report marijuana use, finding that those in the food service and hospitality industries are some of the most common consumers, along with those in arts, design, entertainment, sports, media and construction and extraction.

“Despite mixed evidence for an association between cannabis and work-related injury in the literature, potential safety risks related to cannabis use are still a concern, especially for safety-sensitive occupations or tasks such as driving,” authors wrote. “More research is needed to understand factors driving cannabis use in high-risk industries and occupations. Additionally, more information is needed to discern how much of the measured cannabis use results in impairment on the job, since for many workers, some or all cannabis use may occur away from work.”

The report also emphasizes that more than a fifth (21 percent) of workers who use marijuana say they do so for medical purposes, encouraging employers and employees to “work together to ensure that workplace impairment resulting from cannabis use does not result in injuries.”

“Examples could include outlining expectations around cannabis use in proximity to work generally, establishing a list of high-risk job tasks that should not be done at any level of impairment, or establishing a level of workplace trust and security so that workers can voluntarily opt out of performing certain tasks if they do not think they can do them safely,” the study said. “The primary goal for both employers and employees should be to limit the risk of injury while maintaining productivity.”

The issue of employee drug testing and workplace safety is especially common in areas where state-level legalization collide with the ongoing federal prohibition of marijuana. The conflict arose in a recent federal court case from Alaska Airlines in which the company sought and failed to overturn an earlier arbitration order reinstating the employment of an aircraft maintenance technician whom the company fired over a positive test for THC.

The evolving legal landscape around cannabis in the United States has complicated drug testing standards, especially in federally regulated sectors, and has encouraged employers and policymakers alike to reconsider when and how people are screened for marijuana.

In August, Marijuana Moment published a document behind a decision by Home Depot, one of the largest employers in the United States, to remove cannabis from screening panels entirely and stop pre-employment drug testing of most of its workers.

In 2021, corporate behemoth Amazon announced that it would stop testing many of its workers for marijuana—and also begin lobbying the federal government for cannabis legalization.

A number of states have also passed legislation that limits or prevents drug testing of employees for marijuana. Earlier this year, for example, new worker protections took effect in both California and Washington State.

In California, employers are now prohibited from asking job applicants about past cannabis use, and most are barred from penalizing employees over lawful use of marijuana outside of the job. The Washington State law, meanwhile, protects workers from facing employment discrimination during the hiring process over their lawful use of cannabis. It does not protect current workers from discipline or firing for out-of-work use, however.

In New Jersey, the state’s policy against drug testing public employees has spiraled into lawsuits over whether police in Jersey City can be fired for testing positive for THC. The state’s attorney general has advised departments not to test officers for off-duty cannabis use following legalization, but Jersey City’s mayor has publicly defied that policy—a move officers claim is motivated by the mayor’s political ambitions.

As marijuana legalization began to take effect in Ohio last year Cleveland Mayor Justin M. Bibb (D) announced that the city has “modernized” its drug testing policies for applicants for city jobs, eliminating “antiquated language around pre-employment marijuana testing that has previously hindered hiring efforts.”

A Washington, D.C. law went into effect last July that bans most private workplaces from firing or otherwise punishing employees for marijuana use during non-work hours.

Michigan officials also approved changes to the state’s employment policy last year, making it so applicants for most government jobs will no longer be subject to pre-employment drug testing for marijuana.

New York also provides broader employment protections for adults who legally use cannabis during off-hours and away from work.

A number of North American sports leagues have also revised their stances on cannabis in recent years. Last year, for example, the National Basketball Association (NBA) removed marijuana from its banned substances list and allowed players to invest in cannabis companies. The league had reportedly already stopped testing players for cannabis use for years at that point.

Major League Baseball (MLB), meanwhile, took marijuana off its banned substances list in 2019 and some baseball teams—including the Chicago Cubs and Kansas City Royals—have since partnered with CBD companies. In 2022, MLB itself signed a CBD company to serve as the league’s first-ever cannabis sponsor.

While the National Football League (NFL) and its players union agreed to end the practice of suspending players over marijuana or other drugs as part of a collective bargaining agreement in 2020, it has continued to fine players over positive THC tests. For the first through third positive test, the fine is half a week’s salary; a fourth and each subsequent positive test is punishable by a fine equal to three week’s salary.

Other sports leagues and governing bodies have also adopted revised marijuana policies as the state-level cannabis legalization movement continues to spread.

The National Collegiate Athletic Association (NCAA), for example, recently voted to remove marijuana from its banned substances list for Division I players, a change that took effect in June.

The Ultimate Fighting Championship (UFC) announced in December that it was formally removing marijuana from its newly modified banned substances list for athletes, also building on an earlier reform.

However, ahead of a UFC event in February, a California athletics commission said they could still face penalties under state rules for testing positive for THC over a certain limit, as the state body’s policy is based around World Anti-Doping Agency (WADA) guidance.

Nevada sports regulators voted last year to send a proposed regulatory amendment to the governor that would protect athletes from being penalized over using or possessing marijuana in compliance with state law.

While advocates have welcomed these changes, there’s been criticism of WADA over its ongoing cannabis ban. Members of a panel within the agency said in an opinion piece last August that marijuana use by athletes violates the “spirit of sport,” making them unfit role models whose potential impairment could put others at risk.

Advocates strongly urged WADA to enact a reform after U.S. runner Sha’Carri Richardson was suspended from participating in Olympics events due to a positive THC test in 2021.

Following that suspension, the U.S. Anti-Doping Agency (USADA) said that the international rules on marijuana “must change,” the White House and President Joe Biden himself signaled that it was time for new policies and congressional lawmakers amplified that message.

During this year’s Olympics in Paris, the head of USADA blasted the “unfair” ban on marijuana for athletes competing in international sport events.

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