New Mexico Legalizes Medical Use of Psilocybin

Quick Hits

• On April 7, 2025, New Mexico became the third state to legalize access to psilocybin, following Colorado and Oregon.
• Employers are not required to accommodate employees under the influence of psilocybin at work.

Under the new law—the “Medical Psilocybin Act”—the following qualifying conditions are listed as eligible for psilocybin treatment: “(1) major treatment-resistant depression; (2) post-traumatic stress disorder; (3) substance use disorders; (4) end-of-life care.” The law also allows the New Mexico Department of Health to promulgate regulations that would add qualifying conditions to that list.

New Mexico’s secretary of health has been tasked with establishing a “medical psilocybin advisory board,” to consist of nine members who have knowledge of the medical use of psilocybin. At least one member must be a member of an Indian nation, one must be a behavioral health advocate, and another must be “a representative of the health care authority.” The law also establishes a research fund to allow New Mexico state universities to research additional medical benefits of psilocybin. Finally, the law establishes an “equity fund” which allows for qualified patients who meet certain income requirements to receive psilocybin treatment.

A key takeaway for employers is that the law does not create a private cause of action for violations of its provisions. Thus, as of now, an employee cannot sue an employer for failing to accommodate his or her medical use of psilocybin. However, underlying Americans with Disabilities Act (ADA) claims could arise from failing to accommodate an employee’s use of psilocybin.

It is likely to take a few years for the psilocybin program to be fully operational. (The law requires the program to be implemented by December 31, 2027.) However, in the meantime, employers in New Mexico may want to review their drug testing and accommodations policies with regard to medical psilocybin for qualified patients. As a reminder, employers are not required to accommodate employees who are under the influence of psilocybin while at work.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments and will provide updates on the Drug Testing and New Mexico blogs as additional information becomes available.

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