Summary:

 House Bill 230 (HB 230) clarifies when drug testing for cannabis is allowed for employees who are qualified patients according to the Lynn and Erin Compassionate Use Act; provides protections against adverse employment actions; provides requirements for determining impairment; adds definitions; and requires the Department of Health and the Workforce Solutions Department to develop guidelines for employers. 

Legislation Overview:

 House Bill 230 (HB 230) amends Section 26-2B-9 NMSA 1978, adding the following language to employment protections:

A.	An employee shall not be considered impaired by cannabis solely because of the presence of metabolites or components of cannabis. 

B.	Random drug testing of an employee may not include testing for cannabis. An employer may require a drug test for cannabis if the employer has a reasonable suspicion of the employee's impairment by cannabis at work or after an accident involving the employee and at least one other person, or an accident causing significant damage to property if there is reasonable suspicion cannabis impairment at the time of the accident. The drug test for cannabis must be reviewed by a medical review officer who will determine if the reason for a positive test has a legitimate medical explanation.

Defining "cannabis impairment" is the responsibility of the employer. The Department of Health (DOH) must assist the Workforce Solutions Department (WSD) in developing cannabis impairment guidelines that are based on the most reliable research- or evidence-based cannabis impairment indicators, including the evaluation of physical symptoms and psychomotor and cognitive performance. The WSD must inform private employers of this section and provide information related to the most recent advances in testing protocols for determining cannabis impairment. The Department of Finance and Administration must disseminate the cannabis impairment guidelines to state agencies and political subdivisions of the state. 

As used in this Act, “employee" means an employee who is also a qualified patient pursuant to the Lynn and Erin Compassionate Use Act; and "employer" includes an agent of the employer.
 

Current Law:

 Currently the law does not provide the proposed protections, nor state that the definition of “cannabis impairment” is the responsibility of the employer. The directives regarding the DOH, WSD and DFA are not in place, and the definitions of “employee” and “employer” are not included as proposed. 

Amendments:

 Amended February 15, 2025 in HHHC

HHHCa/HB 230: The House Health and Human Services Committee amendment to House Bill 230 makes the following changes:
1. On page 2, line 13, after the period, strike the remainder of the line and strike lines 14 through 16 and insert in lieu thereof "The employer shall follow the cannabis impairment guidelines when testing for cannabis impairment."