Medical Marijuana Need Not Be Accommodated by New Mexico Employers

New Mexico employers are not required to accommodate an employee’s use of medical marijuana, according to the federal district court in New Mexico. In dismissing an employee’s discrimination lawsuit, the Court recently ruled that an employee terminated for testing positive for marijuana did not have a cause of action against his employer for failure to accommodate his use of medical marijuana to treat his HIV/AIDS. Garcia v. Tractor Supply Co., No. 15-735, (D.N.M. Jan. 7, 2016).

New Employee Terminated For Positive Drug Test 

When Rojerio Garcia interviewed for a management position at a New Mexico Tractor Supply store, he was up front about having HIV/AIDS. He also explained that he used medical marijuana under the state’s Medical Cannabis Program as a treatment for his condition upon recommendation of his doctor.

Tractor Supply hired Garcia and sent him for a drug test; Garcia tested positive for cannabis metabolites. He was terminated from employment. Garcia filed a complaint with the New Mexico Human Rights Division alleging unlawful discrimination based on Tractor Supply’s failure to accommodate his legal use of marijuana to treat his serious medical condition under New Mexico law. 

No Affirmative Accommodation Requirements in New Mexico’s Medical Marijuana Law

Garcia argued that New Mexico’s Compassionate Use Act (CUA), which permits the use of marijuana for medical purposes with a state-issued Patient Identification Card, should be considered in combination with the state Human Rights Act, which, among other things, prohibits employers from discriminating on the basis of a serious medical condition. He argued that the CUA makes medical marijuana an accommodation promoted by the public policy of New Mexico. Accordingly, Garcia asserted that employers must accommodate an employee’s use of medical marijuana under the New Mexico Human Rights Act.

The Court disagreed. It stated that, unlike a few other states whose medical marijuana laws impose an affirmative obligation on employers to accommodate medical marijuana use, New Mexico’s law did not. Consequently, Garcia did not have a claim under the CUA.

The Court then rejected Garcia’s arguments that his termination violated the Human Rights Act. The Court found that Garcia was not terminated because of, or on the basis of, his serious medical condition. He was terminated for failing a drug test. The Court stated that his use of marijuana was “not a manifestation” of his HIV/AIDS, so Tractor Supply did not unlawfully discriminate against Garcia when it terminated him for his positive drug test. 

Court Rejected Public Policy Arguments 

Garcia argued that the public policy behind the state’s legalization of medical marijuana meant that employers should be required to accommodate an employee’s legal use of marijuana. The Court rejected the argument, noting that marijuana use remains illegal for any purpose under federal law. It stated that if it accepted Garcia’s public policy position, Tractor Supply, which has stores in 49 states, would have to tailor its drug-free workplace policy for each state that permits marijuana use in some form.

The Court also relied on the fact that the CUA only provides limited state-law immunity from prosecution for individuals who comply with state medical marijuana law. However, Garcia was not seeking state-law immunity for his marijuana use. Instead, he sought to affirmatively require Tractor Supply to accommodate his marijuana use. The Court stated that to affirmatively require Tractor Supply to accommodate Garcia’s drug use would require the company to permit conduct prohibited under federal law. Therefore, the Court ruled that New Mexico employers are not required to accommodate an employee’s use of medical marijuana.

What This Means For Employers

The Tractor Supply decision is consistent with rulings from courts in other states that have similarly ruled that an employer may lawfully terminate an employee who tests positive for marijuana. Although Garcia may appeal this decision, it is difficult to imagine that an appellate court will overturn it as long as marijuana use remains illegal under federal law, and state law does not require a workplace accommodation.

In light of this decision, take time now to review your drug-free workplace and drug testing policies. Make certain that your policies apply to all controlled substances, whether illegal under state or federal law. Clearly state that a positive drug test may result in termination of employment, regardless of whether the employee uses medical marijuana during working hours or appears to be “under the influence” at work. Communicate your drug-free workplace and testing policies to employees and train your supervisors and managers on enforcing the policies in a consistent and uniform manner.

New Mexico Issues a Notice of Proposed Rulemaking to Revise its State Rural Universal Service Fund

Lewis Roca Rothgerber

This past Wednesday, the New Mexico Public Regulation Commission (NMPRC)approved a Notice of Proposed Rulemaking (NOPR) to revise New Mexico’s State Rural Universal Service Fund following numerous workshops and filings by NMPRC staff, the New Mexico Attorney General’s Office, and both wireline and wireless industry participants in Case No. 12-00380-UT. The NOPR will revise 17.11.10 New Mexico Administrative Code (NMAC). The NOPR will be published for comment, with the goal of providing a final rule by October 1, 2014 that will limit the growth of the  State Rural Universal Service Fund (SRUSF), expand telecommunication service to unserved and underserved areas of the state, earmark a portion of the fund for the build out of broadband service, and ensure better accountability for the use of state funds under the program.

The proposed rule was approved 5-0, with two amendments, by the Commission. The NOPR is expected to be filed in Case No. 12-00380-UT on Monday, July 28, 2014. Let’s briefly summarize several key provisions of the proposed NOPR, subject to comments being filed and final approval by the Commission.

First, because many wireline companies have not increased their residential rates in a rate proceeding before the Commission for over 15 years, the benchmark rate for residential customers will increase to $18.09. A company that chooses  not to raise its benchmark would have the difference subtracted from what it would normally receive from the SRUSF.  Second, business rates will be adjusted over a three year period. Third, the formula for reimbursement from the fund will be adjusted to use 2012 voice minutes. Minutes have decreased since the SRUSF statute and rules were established. The decrease has occurred because more people are using wireless phones and other services. This will result in a reduction in payouts from the fund, which is funded by all telephone customers (both wireline and wireless). The end result will be a reduction of about $9 million annually from the current $24 million fund. Because of the size of impact on the payments to the rural local exchange carriers, this would be phased in over several years. Fourth, from the $9 million savings in annual payments, $5 million will be set aside to fund the build out of broadband capable infrastructure as part of the SRUSF. This $5 million broadband fund will be available to both wireline and wireless providers on a project-by-project basis.”. The $5 million must be used for infrastructure, and companies will be required to fund 25 percent of each approved project. 50 percent of the SRUSF project money would be awarded upfront, and the remaining would be provided after progress reports are filed and reviewed by the Commission. Lastly, if a company can demonstrate need, they may come before the Commission for additional funding.

Two additional changes to the proposed NOPR were made by the Commission at the Open Meeting on July 23. First, the Commission approved an annual cap of a 3 percent surcharge on customers phone bills to fund the SRUSF. If expenditures exceed the 3 percent, then the amount of money from the fund will be prorated among recipients. SOLIX, a private company under contract with the Commission, manages the fund for New Mexico. Second, companies will be required to provide detailed information on how they have spent both federal and state universal service funds since the initial rule became effective in 2006. The official comment period and other due dates will be published in an order on Monday, with the goal to have the docket closed by October 15, 2014.