Ever since New Hampshire legalized medical marijuana, employers have struggled with how to manage employees prescribed cannabis by their doctors. There was concern that businesses might be violating the Federal Controlled Substances Act if they were perceived as permitting employees to use medical marijuana. That is because the Controlled Substances Act characterizes pot as a Schedule I substance and accordingly prohibits its distribution, possession and use, and criminalizes those who aid and abet such conduct. For this reason, many employers took the position that the use of medical marijuana was per se unreasonable as an accommodation for a disability. Last month, the New Hampshire Supreme Court weighed in on the issue, finding that position wrong.
In a case called Paine v. Ride-Away, Inc., the New Hampshire Supreme Court said that use of medical marijuana prescribed in accordance with New Hampshire law may be a reasonable accommodation for an employee’s disability under New Hampshire law. Here is what happened:
Plaintiff, Scott Paine, suffered from Post-Traumatic Stress Disorder (“PTSD”). He enrolled in New Hampshire’s therapeutic cannabis program and was prescribed cannabis as part of this treatment for PTSD. His employer was an automotive dealer which had a drug testing policy permitting the employer to test employees for and restrict employee drug use. Clearly knowing that he would test positive for marijuana if tested, Paine made a written request to his employer for an exception to drug testing as a reasonable accommodation for his disability. Paine explained that he was not requiring permission to use cannabis during work hours or to possess cannabis while on the work premises. He simply was asking to be excluded from testing given that he was using marijuana for medical reasons to treat his PTSD. The employer denied the request, and told Paine that if he intended to use medical marijuana he could not work for the Company. Paine notified the employer that he was going to treat his PTSD with cannabis, and the employer terminated him. Thereafter, Paine sued his employer for disability discrimination under R.S.A. 354-A.
Initially, the employer won the lawsuit. The trial court concluded that although New Hampshire statute allowed medical marijuana, employers were not obligated to accommodate such use given that it was illegal under federal law. The court reasoned that New Hampshire’s anti-discrimination statute defined “disability” as excluding current, illegal use of, or addiction to controlled substances, and therefore, as a matter of law, employers did not have to make reasonable accommodations for marijuana use. Paine appealed, and the New Hampshire Supreme Court reversed.
The Supreme Court agreed with the lower court that New Hampshire’s anti-discrimination statute clearly excludes from the term “disability” illegal drug use and addiction. But the Court said illegal drug use or addiction was not Mr. Paine’s disability. Mr. Paine’s disability was PTSD. In that case, Paine had a qualifying disability for which the use of medical marijuana may be a reasonable accommodation, and furthermore the employer must assess such a request on a case-by-case basis looking at the particular facts of the request.
The Paine case is consistent with Appeal of Andrew Panaggio, a 2021 case where the New Hampshire Supreme Court held that workers’ compensation insurers must reimburse employees for medical marijuana if its use is reasonable and medically necessary.
So, what does this mean for employers going forward?
First, nothing in the decision requires employers to allow illicit drug use or possession in the workplace. Indeed, the plaintiff in Paine specified in his request for accommodation that he would not be using cannabis while he worked or possess marijuana on site. The use of recreational marijuana also is unlikely to be a reasonable accommodation even under Paine. Employers also may still prohibit the use or possession of marijuana (even when prescribed and used therapeutically) at work or during work hours. Employers may also still administer reasonable drug testing policies where appropriate.
The decision also makes clear that a request to use medical marijuana is not a reasonable accommodation if drug use or addiction itself is the disability to be accommodated. This means that if an employee using medical marijuana asks to be excluded from drug testing, for example, because he or she is addicted to marijuana, the employer may reject this accommodation. In that situation where the employee’s disability is illegal drug use or addiction, the employee is not considered disabled under New Hampshire law.
But when the disability for which an accommodation requested is a different medical condition, like PSTD, cancer, or chronic pain, for example, which a licensed medical provider prescribes marijuana to treat, New Hampshire employers are no longer allowed to automatically reject an employee request for therapeutic use of that drug as accommodation. Employers will have to conduct an individualized assessment in each and every case to determine if the requested accommodation regarding medical marijuana use is reasonable in the circumstances.
Of course, employers are not automatically required to accept an accommodation request to use medical marijuana either. There may well be circumstances where the use of medical marijuana to treat cancer, PTSD or another medical condition, is not reasonable. One such example might when the employee operates a vehicle as an essential part of his/her job. The main point of Paine is that employers actually consider and evaluate each and every request for an accommodation, including requests regarding the therapeutic use of cannabis.
These assessments are inherently fact-intensive, and they also can be complicated. Reasonableness may turn on a very small but relevant factor concerning the details of the employee’s request and/or job duties. Employers are therefore well advised to seek legal counsel, as appropriate, before making any final decisions regarding accommodations which relate to marijuana or other drug use. Employers may also wish to review written drug and alcohol policies, drug testing policies, or written policies that address how the employer responds to requests for accommodations to ensure they are compliant with Paine.
 In that case, the New Hampshire Supreme Court concluded that workers’ compensation carriers’ reimbursement for medical marijuana would not violate nor was it preempted by the Federal Controlled Substances Act. The Court reasoned that such reimbursement was not prohibited by the law, nor would it involve the state of mind necessary for aiding and abetting. Furthermore, the Federal government was still free to enforce the law by prosecuting the employee for possession of marijuana notwithstanding the insurer’s reimbursement.