A Bernalillo County commissioner is looking to make things more fair for county employees who use cannabis outside work hours.
Commissioner Eric Olivas said he plans to introduce legislation that would treat off-duty use of recreational cannabis in the same way as off-duty alcohol use. He called it a basic rights issue.
Olivas said he’s been working with the county’s legal team and the unions representing its employees on drafting a resolution he hopes the Board of Commissioners will soon review.
He said he’s been approached by some county employees about the disparity and decided to look into fixing it.
Not all employees
Olivas acknowledged that the rules can’t be changed for all employees. Because marijuana remains illegal under federal law, employees in “safety-sensitive positions” would be exempt from loosening restrictions on cannabis use.
According to New Mexico’s State Personnel Administration, those jobs include employees who are required to regularly carry firearms, those in health care and those whose principal jobs include regularly transporting other people, such as heavy equipment operators, law enforcement officers, pilots and correctional officers. Federal law also places restrictions on positions paid for by federal grants.
Olivas said what he’s proposing will not change the county’s drug-free workplace policy.
“We don’t want people drinking alcohol and driving the fire truck,” he said. “We don’t want people smoking weed and driving the fire truck.”
He said one hurdle might be the absence of a reliable test that can identify whether someone is under the influence of marijuana, similar to how blood alcohol concentration is used to measure intoxication.
County policy now states any employee convicted of a drug offense is subject to automatic termination, while someone convicted of DWI could be retained.
“It’s totally backward,” he said, adding that the county should have a consistent policy.
The rules elsewhere
Other governments have also dealt with the issue. The City of Albuquerque implemented a revised substance abuse policy earlier this year. Spokesperson Ava Montoya said the policy specifically addresses on-duty conduct, but there can be off-duty implications.
For example, the city’s policy prohibits reporting to duty any time “there is a quantifiable presence of a prohibited substance in their body, which could be ingested off-duty or there are situations where off-duty conduct could create the basis for reasonable-suspicion drug testing.”
The city prohibits cannabis use for employees who are on duty or on city property, Montoya said.
She said there was some discussion of incorporating specific provisions about medical cannabis in the recent substance abuse policy update, but “through the course of labor negotiations, those discussions ended, and no specific provisions for medical or recreational cannabis were included.”
City employees in Denver — Colorado legalized recreational cannabis in 2012 — are prohibited from consuming, being under the influence of or impaired by legal or illegal drugs while performing city business, while driving a city vehicle or while on city property. The law doesn’t specifically permit off-duty cannabis use.
Phoenix, Tucson and Portland have similar policies. Kansas City, Missouri, has also dropped cannabis from its pre-employment drug screening menu.
California law prohibits almost all employers from “discriminating against a person in hiring, termination, or any term or condition of employment” based on off-site, off-duty use of cannabis.
Jodi McGinnis Porter, a spokeswoman for New Mexico Gov. Michelle Lujan Grisham, said the state doesn’t have a policy on off-duty use of alcohol or recreational drugs for its employees.
“Certain state employees in safety-sensitive, transportation, or health care provider classifications are subject to pre-employment and random drug screenings,” she said. “Cannabis is part of the drug test.”