December 6, 2019

State job opportunities limited for medical cannabis patients

The seal of the state of New Mexico in the House

Earlier this year, New Mexico legislators and Gov. Michelle Lujan Grisham overhauled the state’s medical cannabis statute. Updates to the law ranged from relatively simple definition changes to more significant changes like allowing consumption areas for cannabis patients. 

But the parts of the law that are supposed to protect patients from losing their jobs solely for being a patient in the program may also be hindering the nearly 79,000 cannabis patients in New Mexico from getting a job with the state. That’s because the law also protects employers by giving them enough autonomy to fire or not hire a cannabis patient for safety concerns or if the employer could lose federal funding for hiring a cannabis user. 

Jason Barker is a medical cannabis patient advocate and a patient himself. He said he started looking at job descriptions after the state announced a three-day “rapid hire event”scheduled for next week and aimed at hiring hundreds of new employees. But, Barker said, many of the jobs he’s qualified for are considered safety sensitive, which would require a pre-employment drug test. State law defines a safety sensitive position as “A position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.”

“Really the only jobs that I saw that were not a job safety sensitive position were jobs that had much higher level working requirements,” Barker said. 

For example, a highway maintenance worker under the Department of Transportation requires a minimum of an 8th grade education, but that job also requires a pre-employment drug screening, presumably because the job requires the use of “medium-duty motorized equipment.” That job’s annual pay is about $30,000 to $35,000. 

Barker said he also looked into janitorial positions, which are not deemed safety sensitive, and found the yearly pay of about $23,000 is less than what he can make now doing landscaping work independently. He said he spends about $100 a week, or roughly 20 percent of what a state-employed janitor makes, on his medical cannabis extracts, which he said are less expensive and easier to stretch out for the week than flower or bud products. 

So Barker reached out to the State Personnel Office (SPO) and asked what might happen if he were offered a job, but was unable to pass a drug test. A representative emailed Barker and told him medical cannabis patients can “occupy jobs in state government” unless the position is safety-sensitive, or if the department could lose federal money or if an employee is found to be impaired while at work. 

A spokeswoman for Lujan Grisham said there are still opportunities for patients like Barker. 

“The state does not require drug testing for all employees–only for those in safety-sensitive positions,” Lujan Grisham’s Deputy Director of Communications Judy Gibbs Robinson said. “So, depending on the medical cannabis patient’s job interest, it is quite possible no drug testing would be required, ever.”

Gibbs Robinson said safety-sensitive positions include those that require driving, handling heavy equipment or carrying weapons.

Ultimately, Barker decided not to apply for any state jobs, citing his concerns of pay and drug testing.

Driving or operating machinery while impaired, especially in New Mexico, is likely a concern for many in the state and could pose a risk to the public, but testing for cannabis intoxication is still an imperfect procedure. In Illinois, for example, cannabis was recently legalized for recreational use, but police there are still working towards a test that can show an accurate level of impairment. For now, most drug screens check for metabolites, the result of the body breaking down a substance. But those traditional drug screenings don’t necessarily show if or how much a person is impaired. 

Barker said he’d like to see the law changed to add more protections for cannabis patients.

Starting next year, employers in Nevada, where recreational-use cannabis is legal, will not be able to deny employment solely based on a positive screening for cannabis. The Nevada law has similar safety exceptions to New Mexico’s law. Lujan Grisham could decide to add medical cannabis to “the call,” or her approved list of non-budgetary issues that can be discussed and voted on during the 30-day budgetary session that starts next month. Worker protection is not the only issue from the recently passed law that cannabis patients and advocates have called insufficient. In October, after a hearing where lawmakers discussed medical cannabis in schools, a state senator said New Mexico school districts took advantage of exceptions and that he planned to amend the law.  

A pending legal appeal by Lujan Grisham’s office and the state’s Department of Health regarding whether the law allows out-of-state residents to become New Mexico cannabis patients is a possible sign that medical cannabis may be on the table next year. 

Lujan Grisham announced this year that she would support a comprehensive legalization bill that addresses public safety concerns. She later convened a work group to come up with a proposal for legislators to consider.