Recreational Adult-Use Cannabis Legalized and Related Criminal Records Expunged

On April 12, 2021, New Mexico Governor Michelle Lujan Grisham signed the Cannabis Regulation Act (HB 2) legalizing recreational adult use of cannabis in New Mexico. Under the act, and unless there is an alternate agreement between the employer and employee, employers may:

  • Prohibit employees from being impaired by, intoxicated by, or possessing cannabis in the workplace or during work hours; 
  • Take adverse employment action against an employee for being impaired by, intoxicated by, or having cannabis at work or during work hours;
  • Refuse to commit any act that would cause them to be noncompliant with federal law or federal regulations, or that would result in loss of a federal contract or funding; or
  • Have a written, zero-tolerance policy for cannabis and under it, discipline or fire an employee based on a positive drug test that indicates any amount of delta-9-tetrahydrocannabinol or delta-9-tetrahydrocannabinol metabolite;

However, the act does not invalidate, diminish, or otherwise interfere with any collective bargaining agreement or right.

The governor also signed amended legislation (SB 2), which added new provisions to the state’s Criminal Record Expungement Act for cannabis-related convictions and public records. Under the law, persons charged with a cannabis-related offense that is no longer a crime on the effective date of the Cannabis Regulation Act (or would have been a lesser offense under the act when it occurred), regardless of conviction, will have their criminal records automatically expunged two years after their arrest or conviction date. If they had multiple charges, then only the portions of the public records related to the cannabis charge will be expunged. For those persons who are under 18, their cannabis-related public records will be kept for the earlier of two years or until they are 18 and will then be automatically expunged (the same caveat applies if there were multiple charges). The public records will also be removed from all statewide criminal databases.

Both pieces of legislation are effective June 29, 2021. Read more on the governor’s website.

Healthy Workplaces Act and Paid Sick Leave

On April 8, 2021, New Mexico Governor Michelle Lujan Grisham signed legislation (HB 20) enacting the state’s Healthy Workplaces Act (HWA) under which private employers (with at least one employee) must provide their employees with paid sick leave. Under the act, employees accrue one hour of earned sick leave for every 30 hours worked and up to a total of 64 hours per 12 months, unless the employer chooses to offer a more generous limit. Employers may choose both:

  • How to define the 12-month period (calendar year, fixed 12-months like a fiscal year, 12-months from when the employee first uses it, or a rolling 12-months); and
  • To frontload the full 64 hours of earned sick leave each January 1, or a prorated portion of it, depending upon the employee’s hire date, rather than use an accrual method.

Accrued, unused earned sick leave also carries over from year to year subject to the 64-hour usage cap. This year-to-year period must coincide with the employer’s defined 12-month period. Employees may use earned sick leave to tend to their own or a family member’s:

  • Illness, injury, or health condition (health condition) or its care or treatment;
  • Medical diagnosis of a health condition;
  • Preventative medical care; or
  • Treatment, counseling, relocation, or legal preparation when they are a victim of domestic abuse, sexual assault, or stalking.

Employees may also use HWA leave for meetings at their child’s school or place of care related to the child’s health or disability. However, employees do not have a right to a payout of accrued, unused earned sick leave if they are fired or quit. Employers with preexisting leave policies that meet HWA terms and conditions may continue to use their own policy.

The act also includes:

  • Protections for the employee’s accrued, unused earned sick leave when they are transferred but remain with the same employer (entitled to use it and keep all rights to it) or are terminated but get rehired within 12 months (accrued, unused earned sick leave is reinstated upon rehire);
  • A ban on employers requiring employees to find replacement workers as a condition to taking leave or requiring employees to use other paid leave before they use HWA sick leave;
  • Terms regarding incremental use. Earned sick leave may be used in hourly increments or the smallest increment that the employer’s payroll system uses to account for absences (or use of other time), whichever is smaller;
  • Notice, posting, documentation, and recordkeeping requirements, along with antiretaliation provisions, employer liability, and how HWA will be enforced.

The act is effective July 1, 2022.