Although medical marijuana is now legal in twenty-three states, including New Mexico, it remains illegal under federal law. This creates a challenging legal landscape for employers who want or need to drug test employees, but do not want to expose themselves to potential liability for disability discrimination. The Lynn and Erin Compassionate Use Act, § 26-2B-1 NMSA et seq. legalizes the appropriate use of medical marijuana in New Mexico. Employers can rest assured that the law is clear on one thing: Employers may take action against employees for using medical marijuana in the workplace or for being impaired on the job. So far, it is clear that employers do not violate the federal ADA by prohibiting even off-site medical marijuana use because marijuana remains illegal under federal law; however, New Mexico courts may find that such prohibitions violate the NMHRA.

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