4 On Your Side examines case of former state worker fired for medical marijuana use
Posted at: 08/20/2012 11:20 AM
| Updated at: 08/20/2012 7:06 PM
By: Chris Ramirez and Peter St. Cyr, 4 On Your Side
New Mexico is one of 16 states - along with the District of Columbia - that allows patients to legally smoke medical marijuana.
But the rules are often confusing.
Our Four On Your Side team found some of those rules are at odds with state personnel regulations.
A former State Personnel Office employee claims she got fired for smoking marijuana to treat symptoms associated with post traumatic stress disorder, or PTSD.
While employers hire people with the expectation that they’ll be alert and capable of performing their job, employees have the right to take their medication.
The woman, who didn’t want her name or face revealed, said she has been suffering from lingering effects of childhood trauma.
After trying prescription pills, her Santa Fe psychiatrist referred her to the Department of Health’s Medical Cannabis program.
When she told her bosses about her new medication they told her her job was not protected. Last November, when she arrived at work with red and watery eyes, supervisors suspected she was impaired and ordered to take a drug test. When it came back positive she was fired.
“I wasn’t looking for methods to get high or to abuse any substances,” the woman told 4OYS. “I was just looking for relief.”
Employed with the agency since 2007, the woman said she only got fired for following her doctor’s orders.
"They didn't care whether or not it was accepted and adopted and approved by the legislature," she said.
Now unemployed, the woman is just one of nearly 7,500 patients in New Mexico who are approved to treat cancer, PTSD, AIDS, and other medical conditions with marijuana.
She said the drug allows her to function, but when she told her bosses at the agency that she had been approved for the program she was told to find another way to deal with her diagnosis.
"I just wanted to be able to get up and live my life the way I use to," she said.
She said she wasn’t impaired at work and said her eyes were bloodshot because she had been up late with a sick child.
State Personnel Director Gene Moser could not comment specifically on the woman’s case, but said employees are prohibited from being impaired at work regardless of whether they take marijuana or any other prescription drugs.
"If you are prescribed Valium and you come to work and you are high and you can't function in the job - it's not fair to the people that hired you and it’s not fair to the state of New Mexico," Moser said.
Moser points to the state’s Drug and Alcohol use policy, which permits the legal use of prescribed drugs on the job only if they do not impair the employee’s ability to perform.
Attorney Justin Pennington represents the former employee. He said his client has every right to test positive for marijuana and she should not have been fired.
“It’s a legally complex case,” Pennington said. “Employers are prohibited from discriminating against employees based upon medical conditions and treatment of the medical condition.”
She was awarded unemployment benefits, but the state has challenged her claim.
If she loses the appeal she could be forced to return thousands of dollars to the state.
For now, Pennington told 4OYS he’s preparing a wrongful termination and civil rights lawsuit for the former employee.