HR REPORT: New Hampshire Supreme Court Weighs In on Employee Accommodation Requests Related to Therapeutic Cannabis

Anna B. Cole, Esq.

The Americans with Disabilities Act, as well as New Hampshire’s Law Against Discrimination – RSA 354-A, require employers to provide qualified disabled employees with reasonable accommodations that will enable the employee to perform the essential functions of their job.  Workplace accommodations commonly include modification of how work is performed, modification of employer policies and/or facilities, and/or the purchase of equipment to be used in the workplace.

Despite the fact that it continues to be listed as a Schedule I drug under the federal Controlled Substances Act, many states, including New Hampshire, have adopted laws permitting the therapeutic use of cannabis.  As a result, employers are being confronted with employee accommodation requests related to the use of cannabis.  While the definition of “disability” was significantly broadened in 2008, both the ADA and state law expressly state that the definition does not include disabilities that are the result of current illegal drug use.  Therefore, these requests beg the question – are employers required to permit the use of cannabis as an accommodation for an employee’s disability, despite the fact that the drug continues to be illegal under federal law? 

On January 14, 2022, the New Hampshire Supreme Court issued a decision in Paine v. Ride-Away, Inc., which moved us one step closer to answering this question.  In Paine, the plaintiff was employed employer as an automotive detailer.  The employer had a drug testing policy under which an employee who tested positive was subject to termination.  The plaintiff had been diagnosed with Post-Traumatic Stress Disorder (PTSD) and, as permitted under RSA 126-X, had been prescribed cannabis as a treatment.  The plaintiff then asked his employer to make an exception to its drug testing policy as a reasonable accommodation for his disability.  In submitting his request, he clarified that he was not seeking to use cannabis during work hours or to possess it on his employer’s premises – just that the employer make an exception to the testing policy, since his off-duty use would result in positive drug test result.  The employer denied his request and terminated his employment based on his use of cannabis in violation of the employer’s policy.  In response, the plaintiff sued the employer for disability discrimination in violation of RSA 354-A. 

Before the trial court, the employer argued that the plaintiff was not “disabled” within the meaning of state and federal law because the definition of disability under RSA 354-A:2, IV “‘is contingent on the ‘disability’ not including current, illegal use of, or addiction to a controlled substance as defined in the [federal] Controlled substances Act.’”  The trial court agreed with the employer and further reasoned that the state’s therapeutic cannabis statute was not intended to obligate employers to accommodate the use of cannabis.  Ultimately, the trial court held that “‘as a matter of law, employers are not required to make reasonable accommodations for marijuana use.’” 

The plaintiff appealed to the New Hampshire Supreme Court.  In reversing the trial court’s decision, the Court explained that the trial court had essentially transposed the law’s disability analysis with the law’s reasonable accommodation analysis.  The Court noted that the plaintiff was not seeking an accommodation because of a disability arising from his illegal drug use; instead, he was seeking an accommodation for his PTSD.  As PTSD is considered to be a disability under state and federal law, the employee was entitled to seek a reasonable accommodation that would enable him to perform his essential functions.  The Court noted that RSA 354-A does not include any language that categorically excludes the use of therapeutic cannabis as a potential reasonable accommodation.  Accordingly, the Court determined that the trial court had erred when it held that, as a matter of law, the use of cannabis could not be a reasonable accommodation for an employee’s disability.  The case has been remanded to the trial court for further proceedings related to the reasonableness of the accommodation request.

Lessons from the Paine decision

Whenever an employee requests an accommodation, the employer should initially determine if the employee has a qualifying disability.  In making that assessment, employers should not focus on the accommodation requested, but should instead focus on the medical condition for which an accommodation is sought.  Once the disabling condition is confirmed, the employer must engage in an interactive process to determine how the disability restricts the employee’s ability to do their job and identify accommodations that would address those restrictions.  An  employer is not obligated to grant the accommodation proposed by the employee if there is an alternative that achieves the necessary result and which does not constitute an undue burden.  An accommodation request that requires the employer to engage in illegal conduct or allow illegal conduct on its premises is patently unreasonable, but an accommodation that requires the employer to tolerate the employee’s off duty illegal conduct (at least under federal drug laws) is not per se unreasonable.  Absent a showing that it would create health or safety risk or violate some other law, licensing or certification requirement, granting an exception to the “discipline for positive test” component of a workplace drug policy could be a reasonable accommodation that does not create an undue burden. 

This is the second case in which the New Hampshire Supreme Court has rejected attempts to limit employee’s access to therapeutic cannabis.  In State v. Panaggio (2019), the Court held that a workers’ compensation insurer could not deny reimbursement to an employee who was using prescribed cannabis to treat a work-related injury.  Taken together, these two cases clearly signal that the Court is likely to protect employee’s use of therapeutic cannabis.  Therefore, employers should proceed with caution before denying an accommodation request related to cannabis use.

Employee accommodation requests require an intensely factually analysis.  Before denying a request or determining that no accommodation exists that will enable the employee to perform their essential functions, it is often prudent for employers to seek legal counsel to ensure that the appropriate steps have been taken to protect the municipality’s interests. 

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 Anna Cole is a member of Drummond Woodsum’s Labor and Employment Group. Her practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum
& MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that
the reader should rely on it as such.