Supreme Court At-a-Glance Contributor Ryan M. Borden, Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.
No. 2020-0470
January 14, 2022
Reversed and remanded
- Whether the trial court erred in ruling that the use of therapeutic cannabis prescribed in accordance with New Hampshire law cannot, as a matter of law, be a reasonable accommodation for an employee’s disability under RSA chapter 354-A.
Plaintiff suffered from PTSD for many years which substantially limited a major life activity. In May 2018, he was employed by defendant in its Londonderry facility. In July 2018, plaintiff’s physician prescribed cannabis to treat his PTSD and plaintiff enrolled in New Hampshire’s therapeutic cannabis program.
Plaintiff submitted a written request to defendant for an exception to its drug testing policy as a reasonable accommodation for his disability. Plaintiff explained he was not requesting permission to use cannabis during work hours or to possess cannabis on defendant’s premises. Defendant informed plaintiff he could not work for it if he used cannabis. Plaintiff informed defendant he would use cannabis to treat his PTSD, and defendant terminated plaintiff in September 2018.
Plaintiff sued for employment discrimination based upon defendant’s failure to make reasonable accommodations for his disability under RSA 354-A:7, VII(a). Defendant moved for judgment on the pleadings on the grounds that marijuana use is both illegal and criminalized under federal law. The trial court granted defendant’s motion, finding that the definition of disability in 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,” which includes marijuana. The trial court further found that while state law permits use of marijuana for therapeutic purposes, it does not require employers to accommodate such use. The trial court denied plaintiff’s motion to amend his compliant as futile.
On appeal, the Court reviewed the definitions of “disability,” “qualified individual with a disability,” and “reasonable accommodation” set forth in RSA 354-A:7. The Court agreed with plaintiff that RSA 354-A does not contain a categorical exclusion of therapeutic cannabis as an accommodation. The Court found that defendant’s reading of RSA 354-A to include controlled substances defined under federal law was incorrect. Rather, RSA 354-A defines disability, and in doing so, specifically excludes disability due to “current, illegal use of or addiction to” a federally controlled substance. In the instant case, plaintiff’s disability was due to PTSD, not illegal drug use. The Court reversed and remanded for further proceedings consistent with its opinion.
The Court declined to address defendant’s remaining claims because they were based on its erroneous reading of RSA 354-A:2, IV.
Employee Rights Group, Portland, Maine (Allan K. Townsend on the brief) and Backus, Meyer, and Branch, Manchester (Jon Meyer on the brief and orally), for the plaintiff. Devine Millimet & Branch, Manchester (Mark D. Attorri and Lynette V. Macomber on the brief, Mark D. Attorri orally), for the defendant. American Civil Liberties Union of New Hampshire Foundation, Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint brief) and Disability Rights Center of New Hampshire, Concord (Pamela E. Phelan and Sarah J. Jancarik on the joint brief), as amici curiae.
