Effective January 14, 2022, the New Hampshire (NH) Supreme Court has issued an opinion that would reverse the previous decision of Scott Paine v. Ride-Away, Inc., allowing for employers to deny requests for medical accommodations associated with use of marijuana. In October 2021, the former employee, Scott Paine, had obtained authorization from his doctor, recommending that he utilize medical marijuana under the state’s program, in an effort to treat Paine’s diagnosed post-traumatic stress disorder (PTSD). Upon receiving the recommendation and enrolling for the state program, Paine presented a request for medical accommodation to be exempted from the company’s drug screening policy given his off-duty treatment. Ultimately, the employer denied Paine’s request for accommodation and Paine was separated shortly after.
As a result, Paine filled a claim for employment discrimination indicating that their former employer failed to provide for a reasonable accommodation under the state’s medical marijuana program. The former employer argued that marijuana is still classified as a Schedule I narcotic, under the federal law, giving the company grounds to deny the accommodation. The NH Supreme Court originally agreed with the employer and confirmed the denial of the accommodation request. This led Paine to file an appeal that argued that an employee’s use of medicinal marijuana to treat a disability should be permitted under the law.
After a short period of re-examination, the NH Supreme Court reversed their original decision and agreed with Paine. The court confirmed that the New Hampshire disability and accommodation statute did not contain any verbiage that expressly prohibited the use of medical marijuana as an accommodation. As such, it was decided that whether an accommodation for a state medical marijuana patient is considered reasonable is based on an “intrinsically factual determination” and each accommodation request “should be decided on a case-by-case basis depending on the facts of the case.”
With this court ruling, New Hampshire gets added to the growing list of states that have passed legislation to provide protections to applicants and employees, from adverse employment action as a result of use of medical marijuana under a state program.
Next Steps for Employers
Employers should carefully review and make updates their policies and procedures regarding off-duty conduct, drug screening, use of medical marijuana, and reasonable accommodations in the workplace. Employers should also ensure that supervisors and managers and human resource professionals have been trained on the interactive process and reasonable accommodations under federal and state laws, in addition to, ways to reasonably observe and address when someone is working while impaired.
Employers are also encouraged to stay abreast of the subject and to seek the assistance of legal counsel in the event such a situation were to arise in the workplace or should they have any further questions.