Bernalillo County Employees warned against medical marijuana use

A few thousand people employed by Bernalillo County are being warned that using marijuana to treat their medical symptoms could cost them their jobs even if they have a state-issued patient license.---

Pointing to a federal prohibition on cannabis and the county's own controlled substance abuse policy, Bernalillo County Manager Tom Zdunek sent a memo to commissioners and top county managers last week urging them to remind employees that the use of medical marijuana "may affect their employment."

In the Nov. 12 memo, Zdunek writes, the policy was established "to ensure the safety and wellbeing of the employees of Bernalillo County as well as the general public."

Commissioners Debbie O'Malley and Wayne Johnson both tell SFR they support Zdunek's warning for the same reason.

"My thing is don't get loaded and come to work," O'Malley says, adding the same policy governs the use of other drugs and alcohol that could impair someone's judgment.

Commissioner Wayne Johnson discounts doctors' treatment plans for their patients. He says his focus as an elected official is making sure county employees don't endanger the public.

"You don't want county employees using substances of any kind to endanger the public while they're driving a bus or operating equipment," Johnson says.

Johnson wonders how employees can leave their symptoms untreated at work and only use marijuana at home.

"That makes it seem more like recreational use," he says, adding that he questions the legality of the state's cannabis program altogether.

Santa Fe County Human Resources Director Bernadette Salazar says the county's policy also prohibits marijuana use by its employees even for medical treatment. Staffers who test positive for the drug could be disciplined or fired. Citing federal law, Salazar says the employee handbook is being revised, but employees will be allowed to comment on the policy and provide input before it's presented to commissioners for approval in 2014.

Those views concern Sen. Gerald Ortiz y Pińo, D-Bernalillo, who tells SFR the county can have their own policy, but "it seems like an incredible violation of the whole intent of the medical marijuana law."

"It's a very short-sided and imbalanced policy that he's [Zdunek] trying to implement," Ortiz y Pińo says. "It's unfair. We've said it's okay under state law, and when they start using it they get fired from their jobs."

But Bernalillo County Attorney Randy Autio says employees with public sensitive jobs have always been subject to random testing. Other employees can be tested if their managers have a reasonable suspicion they may be impaired on the job.

Last December, the county fired a corrections officer at the Bernalillo County Metro Detention Center after he tested positive for marijuana. Augustine Stanley, a father of four and a US Army veteran, was referred to the state's cannabis program by his doctor to treat symptoms of post-traumatic stress disorder after a tour of duty in Iraq. He was fired after a random drug test.

"We tried to give him his job back," Autio says. "But he wouldn't agree to stop using marijuana."

Autio says state rules defer to employers to decide if they'll allow employees to use medical cannabis.

He's right. The law says patients can be restricted from using it in their workplace, but the law is unclear about testing positive for THC days after medicinal marijuana use at home.

"These policies have been upheld by courts all around the country," Autio says adding he knows that metabolized marijuana, or THC, stays in the system long after a person smokes or injest it.

"I wish there was a better way to test if an employee is impaired on the job, because it's not as straightforward as alcohol," Autio says. "The main thing we have to do is watch out for public safety. That's more important than the comfort an employee may get from a prescription."

A Department of Health spokesman said he had no comment on Bernalillo County's decision, but the Drug Policy Alliance of New Mexico is already speaking out against the new policy. The group has been working with veterans to make sure they have access to cannabis and worked closely with Stanley after he was fired from the jail.

"This is a backwards policy that will prevent people who are suffering from accessing the medicine that works for them," says Drug Policy Alliance – New Mexico Policy Coordinator Jessica Gelay. "Many people find by participating in the medical marijuana program they are able to return to the workforce when before they were too sick to be employed. It is unconscionable that the County Manager would unilaterally attempt to deny Bernalillo County employees the right to use a medicine recommended by their physician."

Patients, Gelay says, deserve a safe and effective treatment in consultation with their private doctors.

"It is time to stop demonizing marijuana and creating a double standard for prescription medications," she says.

Frustrated with Bernalillo County's approach, Ortiz y Pińo says, "you can see that the road to legalization for marijuana is steep.

"But, I'll keep pushing," he adds.

More than 10,250 people have received licenses to use medical cannabis in New Mexico since 2007.

Updated: 6:15 PM

State Sentor Cisco McSorley, D-Bernalillo, tells SFR he thinks Bernalillo County's policy may violate the Americans With Disabilities Act.

Listen to our interview with McSorley by clicking on the orange button in the play box below.

Santa Fe Reporter