Pubdate: Mon, 30 Mar 2015 Source: Albuquerque Journal (NM) Copyright: 2015 Albuquerque Journal Contact: http://www.abqjournal.com/ Details: http://www.mapinc.org/media/10 Author: Marshall Martin Note: Attorney Marshall G. Martin is in private practice in Albuquerque. He has experience in complex litigation, including securities, antitrust and lender liability law. He also has represented banks and private and public companies. LEGAL ARENA SORTING THROUGH LEGALIZED POT As Marijuana Becomes Increasingly Acceptable, Contradictory Federal and State Laws Raise Numerous Issues, Ignite Disputes Marijuana has evolved from a substance that a former U.S. president "tried but never inhaled" to a state tax bonanza, exotic medical treatment and a frequent subject of employment-related disputes. Colorado, Washington, Alaska and the District of Columbia have now legalized recreational use, although the District's enactment is complex and has significant limits. Almost half the states and the District of Columbia permit medical marijuana. Nonetheless, under federal law, marijuana is still listed as a Schedule One drug under the U.S. Controlled Substances Act. U.S. attorneys can pursue growers and dispensers of marijuana, even though such business may be "legal" under state law. In 2014, the New Mexico Court of Appeals held that medical marijuana treatment was a treatment that could be dispensed to injured or impaired workers under the New Mexico Workers Compensation Act. The court equated medical marijuana with a prescription drug. Banking is also a problem. Legal marijuana, medical or recreational, is a "cash crop." Few financial institutions will open checking accounts for medical or recreational marijuana businesses, even if legal under state law. Customers deal in cash - no credit cards. The marijuana business hides its cash receipts where it can. In early 2014, the Treasury Department's financial crimes enforcement network issued guidelines designed to give guidance to financial institutions on banking legal marijuana businesses. The guidance followed an earlier Department of Justice memorandum that directed U.S. attorneys to concentrate their resources on limited high-priority marijuana-related conduct - implicitly omitting normal banking operations. The Treasury guidance required detailed due diligence investigation and monitoring of any "legal" marijuana business. It did not promise immunity from prosecution. Despite the guidance, there is no sign that any major national bank will undertake marijuana banking - and, in fact, they have monitored and shut down business accounts that tried to use "front" businesses to deposit the marijuana cash. Some banks and credit unions have opened accounts with legal medical and recreational businesses, but the activity is not widespread. Surprisingly, in the December 2014 bipartisan spending bill, the U.S. Congress bars the Department of Justice from expending federal funds to stop the growing or sale of legal medical marijuana. Medical marijuana is an important issue in employment law. Barbara Evans, a Roswell employment lawyer, recently reviewed marijuana in the workplace in the New Mexico Lawyer, a publication of the New Mexico Bar Association. In her view, it appears clear that employers can prohibit the use of marijuana during work hours under the federal Drug-Free Workplace Act. Although her views are not based on New Mexico law, Ms. Evans thinks that the New Mexico legislation legalizing medical marijuana does not prohibit private employers from discriminating against employees for being medical marijuana users. It is far less certain whether an employer must accommodate an employee's use of prescribed medical marijuana as a medical accommodation under state law, provided that the use is not during work hours. Federal courts in other states have held that medical marijuana is not a required accommodation under the federal Americans with Disabilities Act. Medical marijuana "accommodation" is now being tested in a New Mexico state court. An employee of a contractor to Presbyterian Healthcare Services tested positive on a required Presbyterian drug test. Her services were terminated. She sued Presbyterian under the New Mexico Human Rights Act, which requires employers to accommodate serious medical conditions. The plaintiff is a military veteran who allegedly suffered from posttraumatic stress disorder. She used medical marijuana under a prescription to treat her PTSD. Presbyterian is defending on the basis that marijuana is an illegal drug and the Drug-Free Workplace Act controls over state law. Other defenses are pleaded as well. The final outcome may be years away. Stay tuned. - --- MAP posted-by: Jay Bergstrom