New Mexico Drug Testing Laws 2024

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New Mexico Drug Testing Laws 2024

New Mexico lacks a comprehensive drug-testing statute governing general employer practices for drug-testing employees and job applicants. Nevertheless, specific drug testing regulations are in place for certain individuals, such as motorists and healthcare providers in the state. Per Section 9-7-18 of the New Mexico Statutes, healthcare providers must conduct drug and alcohol testing for employees involved in direct care at New Mexico state health facilities, both during the hiring process and throughout employment.

Taking punitive employment actions against an applicant or employee based on conduct allowed under the Lynn and Erin Compassionate Use Act (pertaining to medical marijuana use) is prohibited by law. However, an exception exists if refraining from adverse action would lead the employer to forfeit a monetary or licensing-related benefit under federal regulations.

Furthermore, though recreational marijuana use is legal in New Mexico under the Cannabis Regulation Act, employers are not obliged to permit or accommodate marijuana use in the workplace. The Act explicitly allows employers to establish a written zero-tolerance policy concerning cannabis use. It authorizes the disciplining or termination of an employee based on a positive cannabis drug test.

Note that New Mexico is considered an at-will employment state. Therefore, the prevailing norm is that employers and employees possess the authority to terminate the employment relationship at their discretion without specifying a particular reason, as long as the rationale is not deemed illegal. This principle persists even when an employment contract exists, especially when the contract lacks a specific duration. Exceptions arise when the contract is underpinned by considerations beyond routine job duties and wage payments or explicitly delineates alternative terms for termination.

What Kinds of Drug Tests Can Employers Conduct in New Mexico?

Since New Mexico has no statute governing the administration of drug testing by employers in the state, employers can test for any kind of illegal drug they deem fit. Typically, New Mexico employers take blood, urine, or saliva samples to test for the following substances:

• Amphetamines
• Barbiturates
• Benzodiazepines
• Methamphetamines
• THC
• Cocaine
• Phencyclidine
• Methadone
• Oxycodone
• Fentanyl
• Morphine

When testing for THC use, employers may conduct a reasonable suspicion test or a post-accident test. A reasonable suspicion test may be required when the employer notices patterns such as slurred speech or blurry eyes in an employee, which is suspected to be due to cannabis use. A post-accident drug test is a drug screening conducted on an individual following a workplace accident or incident that the employee suspects occurred due to cannabis use.

Can Employers Do Random Drug Testing in New Mexico?

Yes. Some employers in New Mexico require their employees to submit to random drug testing. This is common with employers who offer jobs to applicants in safety-sensitive positions, such as law enforcement and commercial drivers.

What Happens if You Fail a Drug Test in New Mexico for a Job?

The repercussions of failing a mandatory drug test depend on company policies, as New Mexico does not have drug testing laws or employee protection provisions for failing drug tests. A common consequence for a worker who fails a drug test is termination. In the case of job applicants, refusal often results in the denial of a job offer.

Employees terminated for failing a mandatory test may lose their jobs and forfeit associated employee benefits, including health insurance provided by the employer. Another potentially severe consequence for an employee who fails a job-related drug test is the potential legal ramifications. A federal employee in New Mexico who tests positive for a drug considered illegal by federal law, such as cannabis, may lead to criminal charges.

Can I Be Fired for Refusing a Drug Test in New Mexico?

Yes. Refusal to submit to drug testing may be treated like a positive test in New Mexico. There are no specific protections in New Mexico laws to cater to persons who refuse to be drug tested. Therefore, employers have ample discretion in devising and implementing drug testing policies.

However, there are circumstances where an employee has the right to decline or refuse a drug test. If an employee is diagnosed with a medical condition or disease covered under the Americans with Disabilities Act (ADA), they can refuse to take a drug test if the testing procedure conflicts with the reasonable accommodations guaranteed by the ADA. Similarly, an employee may decline a drug test if it would violate a state law.

Furthermore, an employee can reject a drug test if they can demonstrate that the testing requirement is based on discrimination. For example, if an employee can substantiate that their refusal to undergo drug testing is connected to discriminatory practices, such as refusing tests based on religious beliefs, they may have grounds to file an employment discrimination lawsuit against their employer. This legal action can be pursued in court if the employee can provide evidence that the employer enforces drug testing selectively based on religious affiliation.

Can You Get Fired for Failing a Drug Test with a Medical Card in New Mexico?

SB 406 establishes employment protections for medical marijuana cardholders in New Mexico. The law expressly prohibits employers from undertaking any adverse employment actions against an applicant or employee based on activities permitted under the Lynn and Erin Compassionate Use Act, except under specific circumstances.

In most instances, New Mexico employers are explicitly prohibited from engaging in discriminatory actions or practices such as refusing to hire, terminating, or taking adverse actions against job applicants or employees solely due to their possession of a medical marijuana prescription card or medical marijuana use.

Despite the substantial employment safeguards introduced by SB 406, it is important to note that these protections are not absolute, and certain exceptions apply. Firstly, the law does not extend its protections to employers at risk of losing monetary or licensing-related benefits under federal law or regulations when hiring or employing individuals who use or test positive for marijuana.

Secondly, the provided protections do not cover employees occupying "safety-sensitive positions," defined as roles wherein the performance of an individual under the influence of drugs or alcohol would pose an immediate or direct threat of injury or death.

Additionally, the law does not protect employees using or impaired by medical marijuana while actively working on the premises of employment or during working hours. Employers retain the authority to take adverse actions against employees for the use of, or impairment by, marijuana on the premises or during employment hours, even if the employee possesses a medical marijuana card.

Can Employers Conduct Drug Tests on Applicants in New Mexico?

The absence of a drug testing law in New Mexico implies broad employer freedom to choose whether or not to request drug testing as part of their hiring process. Employers have the leeway to opt out of drug testing applicants or decide to test applicants pre-employment.

Is Pre-Employment Drug Testing Allowed in New Mexico?

New Mexico has yet to enact any laws regulating pre-employment drug testing. Hence, employers may drug test employees before they resume work. Typically, applicants offered employment for safety-sensitive positions, such as positions affecting public safety, are required to undergo pre-employment drug tests.

Does New Mexico Allow Public Agencies to Submit Employees to Workplace Drug Tests?

Since New Mexico has yet to enact drug testing laws, public agencies can require employees to submit to workplace drug tests. Most public agencies in the state, especially those providing jobs in safety-sensitive work areas, require employees to undergo workplace drug tests.

Can Employers Choose to Create Drug-Free Workplace Policies?

New Mexico laws do not require employers in the state to accommodate or allow drug use in the workplace. State laws specifically allow employers to adopt written zero-tolerance policies regarding the use of cannabis. Per N.M. Stat. § 26-2C-34, employers may discipline or terminate employees based on positive drug test results for cannabis use in workplace environments.

Employees Exempted From New Mexico Workplace Drug Testing Laws

Although New Mexico does not have specific workplace drug testing laws, federal employees in the state will not be subject to any potential state-enacted drug testing laws since they are required to work under federal conditions and regulations. Typically, federal employees and commercial driver licensees are required to submit to pre-employment and random drug tests to ensure abstinence from federally illegal substances such as cannabis.

Also, New Mexico law enforcement employees may be subject to stricter drug testing laws than any future New Mexico drug testing laws. As outlined in the New Mexico DPS Policies and Procedures, Department of Public Safety employees may be subjected to pre-employment, random, reasonable suspicion, post-accident, and other types of drug testing without prior notice.

What are the Requirements for Drug Testing Labs in New Mexico?

Per the Blood and Breath Testing Policy of the State Department of Health, laboratories conducting drug analysis in blood must be certified by the Scientific Laboratory Division of the New Mexico Department of Health. Employers in New Mexico typically use a state-certified independent laboratory accredited by the Substance Abuse and Mental Health Services Administration or the College of American Pathologists, Forensic Urine Drug Testing.