Thursday, January 28, 2016

New Mexico Federal Court Finds Employer Does Not Have to Accommodate Medical Marijuana Use

As of July 1, 2007, under the “Lynn and Erin Compassionate Use Act” (CUA), the State of New Mexico legalized the use of marijuana to treat serious health conditions.  Accordingly, the plaintiff in Garcia v. Tractor Supply Company, per his physician's recommendation, had been treating his HIV/AIDS with the use of medicinal marijuana after he was accepted into New Mexico’s Medical Cannabis Program, and received a Patient Identification Card.  The plaintiff applied for a position with the defendant employer and during his interview, the plaintiff advised the employer that he had HIV/AIDS and also that he participated in the Medical Cannabis Program.  The employer hired the plaintiff and sent him to a testing facility for a drug test.  After the plaintiff tested positive for marijuana, the employer terminated him.

After his termination, the plaintiff filed a complaint with the New Mexico Human Rights Division, alleging unlawful discrimination.  The plaintiff received a Determination of No Probable Cause from the New Mexico Labor Relations Division/Human Rights Bureau on April 15, 2015. Therefore, the plaintiff had properly exhausted his administrative remedies, which allowed him to file suit in court, which he did on July 13, 2015 in the First Judicial District Court of Santa Fe County, New Mexico, The plaintiff alleged that the defendant terminated him based on his serious medical condition and his physicians‟ recommendation to use medical marijuana. The defendant timely removed the case to federal district court in New Mexico on August 21, 2015 and then filed a Motion to Dismiss on on August 28, 2015, arguing that the plaintiff failed to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).


The issue before the court on the defendant's Rule 12(b)(6) motion was whether New Mexico‟s Compassionate Use Act (“CUA”) combined with the New Mexico Human Rights Act provides a cause of action for the plaintiff. Ever-present in the background of this case is whether the Controlled Substances Act preempts New Mexico state law.  The court, in granting the defendant's motion, held that New Mexico’s medical marijuana statute and the New Mexico Human Rights Act do not require employers to accommodate medical marijuana use because the CUA combined with the New Mexico Human Rights Act does not provide a cause of action for the plaintiff as medical marijuana is not an accommodation that must be provided for by the employer. 


Unlike Connecticut and Delaware, New Mexico did not include in their medical marijuana acts affirmative requirements mandating that employers accommodate medical marijuana cardholders, which the plaintiff acknowledged.  However, the plaintiff argued, unsuccessfully, that the CUA makes medical marijuana an accommodation promoted by the public policy of New Mexico, and therefore, medical marijuana is an accommodation that must be provided for by the employer under the New Mexico Human Rights Act.  In response, the defendant argued that the CUA only offers users of medical marijuana limited immunity against state criminal prosecution and imposes no duty on employers to accommodate the use of medical marijuana.  The court then looked to other courts who have decided this issue as it was one of first impression for them.


In finding that the defendant could not have terminated the plaintiff because of his serious health condition, the court held that, "[t]esting positive for marijuana was not because of Mr. Garcia‟s serious medical condition (HIV/AIDS), nor could testing positive for marijuana be seen as conduct that resulted from his serious medical condition. Using marijuana is not a manifestation of HIV/AIDS."


The defendant also argued that requiring accommodation of medical marijuana use conflicts with the Controlled Substances Act (“CSA”) because it would mandate the very conduct the CSA proscribes, but the court noted that the plaintiff not merely seek state-law immunity for his marijuana use. Rather, he seeks the state to affirmatively require the defendant to accommodate his marijuana use.

Thus, it does not seem like these cases are likely to succeed in any state where the medical marijuana act does not affirmative state a mandate that employers need to accommodate medical marijuana cardholders.

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