Most Government Workers Will No Longer Be Punished For Off-Duty Marijuana Use In New Mexico’s Largest County

Commissioners in New Mexico’s most populous county have approved new policy details of a plan to stop testing and punishing most government employees for off-hours marijuana use. Bernalillo County, where Albuquerque is located, appears to be the first public body in the state to implement the reform following the legalization of cannabis in 2021.

At Tuesday’s meeting of the Board of County Commissioners, members voted unanimously to greenlight changes from board Vice Chair Eric Olivas (D) to revise 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.

Olivas said the changes are intended to “essentially liberalize cannabis use policy here at the county—off-duty use—while still maintaining a zero-tolerance drug-free workplace policy.”

Employees understand that their top priority is to be alert and safe on the job, he told colleagues. At the same time, he said the county needs to trust its employees’ abilities to use marijuana responsibly.

“We also need to trust our employees,” he said. “They have free will and they have liberty on their time off, whether they like hiking or they like having a beer or, you know, they want to use cannabis.”

For workers like firefighters and emergency public safety dispatchers, Olivas said the change could open the door to another possible way “to treat any conditions or traumatic events they’re dealing with.”

Commissioner Adriann Barboa (D), the board’s chair, said she felt it was “important to hear from our firefighters,” some of whom helped push for the policy change. She pointed to “the fact that medical cannabis and recreational cannabis can be used for PTSD, and it is a helpful, legal substance.”

“We needed to update our rules and regulations on that, and I think that this does that,” she said.

“I think it’s high time,” quipped Commissioner Steven Michael Quezada (D), who is also an actor who formerly played a Drug Enforcement Administration agent on the show Breaking Bad.

“That was a joke,” Quezada added. “I had to end with something, people.”

In addition to removing the county’s prohibition on off-duty cannabis use, the policy changes group employees into three tiers based on their roles in public safety and whether they’re subject to federal regulations. The tiering system would generally 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.

Tier 1 workers will 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,” the revised document says. All other positions would be in Tier 3.

Among those in favor of the changes was Paul Walton, a firefighter in New Mexico who’s worked for years to bring the reform to Bernalillo County after being inspired by presentation from a Pittsburgh department that touched on discrimination around marijuana use, including of registered medical patients.

Walton said in a separate email to Marijuana Moment ahead of the commission’s Tuesday meeting that should the proposal pass, it would next need to be signed by the county manager and proceed to a vote by labor union members.

“It feels good to finally be heard and have some reasonable common sense policy change,” he said of the Bernalillo County reforms, thanking Olivas “for his progressive thinking” on the matter.

“The county policy change has been a two-year process for me that is much needed to come into compliance with New Mexico state law, federal regulations, and fair labor practices,” Walton wrote. “There definitely has been a lot of ups and downs during this process. However, the first text I got after the resolution was passed was from an officer that said, ‘…. Yeah, you probably just saved my life.’ That is the only motivation I need to keep pushing for this fair change.”

Walton told Marijuana Moment that he’d like to see more sweeping reform but understands that has to come incrementally. For example, while he’d “prefer to have all random drug testing removed and only test for reasonable suspicion, I understand that it can be perceived negatively by some and the general public,” he said.

Walton hoped that the change would have “a domino effect” across other agencies in the state.

“This is not a fix-all, but will be a great added tool in the toolbox for firefighters to help cope with job-related issues,” he said, adding that he plans to continue to advocate with the county and union leaders to for better mental-health resources and improvements to a peer support program.

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 similarly announced that it would stop testing many of its workers for marijuana—and also begin lobbying the federal government for cannabis legalization.

The conflict also 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.

Just this week, in a different case involving a Walmart job applicant in New Jersey who was rejected after failing a test for THC, a federal appeals court panel ruled that although state law explicitly forbids employment discrimination against marijuana users, private individuals are unable to sue employers under that law because it failed to create any specific remedies.

Read the full redlined version of Bernalillo County’s workplace drug policy reflecting the newly approved changes:

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Photo courtesy of Chris Wallis // Side Pocket Images.