On April 12, 2021, New Mexico Governor Michelle Lujan Grisham signed two bills into law, legalizing the use and possession of recreational cannabis and allowing for the expungement of certain cannabis-related criminal records.  With this development, New Mexico joins many other states that have legalized recreational cannabis for adults 21 and older.  The use of cannabis for medicinal purposes was previously authorized in New Mexico by the Lynn and Erin Compassionate Use Act, which was passed in 2007.¹

The Cannabis Regulation Act

General Provisions.  The Cannabis Regulation Act authorizes adults to possess more than two ounces of cannabis, 16 grams of cannabis extract, and 800 milligrams of edible cannabis if it is stored at home or out of public view.  An individual may keep up to six mature cannabis plants at home, but no more than 12 total mature plants per household.  While in public, an adult may possess up to two ounces of cannabis, and it must be smoked, vaporized, or ingested in a designated “cannabis consumption area.”  People who violate this public use restriction may be fined up to $50 per violation.  The Act provides that the sale of recreational cannabis must begin no later than April 2022, although the Act’s other provisions will become effective June 29, 2021.

Employer Drug and Alcohol Rules Permitted Under the Act.  The Act specifically permits employers to implement, continue, and maintain certain fundamental drug-free workplace rules and policies to ensure employee safety.  In particular:

• Workplace Impairment/Possession Can Be Prohibited.  The Act does not restrict an employer’s ability to prohibit or take an adverse employment action against an employee for impairment or possession of “intoxicating substances” at work or during work hours.

• Federal Safe Harbors.  The Act does not interfere with an employer’s ability to maintain rules and policies in compliance with federal law and regulations or require an employer to take any actions that will potentially result in the loss of federal contracts or funding.

• “Zero Tolerance” Policies Can Be Maintained Under Specified Circumstances.  An employer may continue to adopt and implement a written “zero tolerance” policy regarding the use of cannabis products, and such a policy may permit employers to discipline or terminate the employment of an employee on the basis of a positive drug test that indicates any amount of delta-9-tetrahydrocannabinol or delta-9-tetrahydrocannabinol metabolite.  Note that this allowance for “zero tolerance” policies does not specifically include applicants.

• No Interference with Collective Bargaining Agreements.  The Act states that it is not intended to be construed to invalidate, diminish or otherwise interfere with any collective bargaining agreement, or the ability of any party to collectively bargain over a drug-free workplace policy or related issues.

As used in the Act, the term “adverse employment action” includes “refusing to hire or employ a person; barring or discharging a person from employment; requiring a person to retire from employment; or discriminating against an employee in compensation or in terms, conditions or privileges of employment.”

The Expungement of Certain Criminal Records Act

The Expungement of Certain Criminal Records Act creates a new section of the Criminal Record Expungement Act, and allows expungement of arrest and conviction records relating to cannabis offenses that become legal on the effective date of the Cannabis Regulation Act, June 29, 2021, or that would have been lesser offenses if the Act had been in effect at the time of the offense, whether the alleged offender was convicted or not.  Under the review of the New Mexico attorney general, all public records held by a court, an agency of the state, or local jurisdiction that relate to such arrests or convictions will be automatically expunged two years after the date of the person’s conviction, or the date of arrest if there was no conviction.  If the arrests or convictions included multiple charges, only the public records related to the cannabis charges will be expunged.  Additionally, if the alleged offenders are or were under 18 at the time of arrests or convictions, the public records will be retained until the earlier of two years or when they turn 18 years of age.

Within 30 days of June 29, 2021, correctional facilities in which a person is currently incarcerated for a cannabis offense that is no longer a crime pursuant to the Cannabis Regulation Act, or that would have resulted in a lesser offense, must identify all past convictions that are potentially eligible for reopening, recall, dismissal, and expungement.

Practical Guidelines for Employers

New Mexico employers have until June 29, 2021 to review their operating procedures and ensure compliance with these new laws.  Specifically, it is important for employers to review their existing drug-free workplace policies and drug-testing policies as they relate to testing for cannabis to ensure compliance with the Cannabis Regulation Act.  While federally mandated testing, including DOT testing, can and must continue, employers should review their federal contracts and funding requirements relating to testing for cannabis.  Employers are encouraged to remind their employees of existing prohibitions against the possession of, use of, and impairment from cannabis products while working.