Leaders In New Mexico’s Most Populous County Will Vote To Stop Punishing Off-Duty Marijuana Use By Public Workers This Week

After a plan by New Mexico’s most populous county to stop punishing most government employees for off-hours marijuana use won approval in concept last month, commissioners in Bernalillo County on Tuesday evening will consider adopting formal changes to the local workplace drug and alcohol policy.

Commissioners already unanimously adopted the first of two parts of a plan from board Vice Chair Eric Olivas: a resolution in support of revising the county’s Drug and Alcohol-Free Workplace Policy to remove cannabis “when used legally off-duty for medical or recreational purposes” from its definition of illegal drugs.

Now they’ll need to approve the substantive changes to county policy.

In addition to removing the county’s prohibition on off-duty cannabis use, the proposed revisions would establish three tiers of employees based on their roles in public safety and whether they’re subject to federal regulations.

Tier 1 workers would include those required to have a commercial driver’s license or carry a firearm as part of their duties, while Tier 2 roles “carry significant responsibility for the health, safety, and well-being of the public.” All other positions would be in Tier 3.

The tiering system would apparently replace the county’s reference to “safety sensitive” positions for the purposes of drug testing, with employees in Tiers 1 and 2 being subject to more testing—for example random workplace drug testing and pre-employment testing.

In the event of a workplace incident, employees would be tested for substances and barred from performing Tier 1 or Tier 2 functions until the return of a negative drug and alcohol test. Workers who self-identify as having a potential problem with substance use would also be temporarily removed from Tier 1 and Tier 2 roles.

Olivas, the plan’s backer, did not respond to emailed requests for comments ahead of this week’s meeting, but last month he told colleagues that the plan “is about rights for our workers, rights for folks that we trust every day to save us—literally—when the building is burning down,” referring to firefighters.

He said at the time that proposal symbolizes “the rights of blue-collar workers really being at a level of parity with white-collar workers.”

“Throughout society,” Olivas said, “we aren’t asking these kinds of questions of doctors and surgeons about what their drug use is or what their alcohol use is, but we tend to be a little more interested in that when it’s folks that are blue-collar workers.”

Olivas told Marijuana Moment in an interview earlier last month that 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.

For workers who experience physical pain or mental health trauma as the result of their duties, prescription painkillers and antidepressants are “currently, the only tools in the toolbox, so to speak,” Olivas told colleagues at last month’s meeting, noting that some of those drugs can have “really serious mental health consequences and other conditions.”

Meanwhile there’s growing scientific evidence that cannabis has “tremendous benefits for things like PTSD, serious pain relief—all kinds of those things,” he said. “I think it’s just time that we as a county catch up with the times.”

Paul Walton, a firefighter in New Mexico, is among those expected to testify at Tuesday’s meeting in support of the drug-testing changes.

“I’ve been working on this project for almost two years now,” Walton told Marijuana Moment ahead of last month’s board vote, 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, Virginia; 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.”

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 last 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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Photo courtesy of Mike Latimer.