It is not unusual for companies to have a policy forbidding illegal drug use by employees, including marijuana. That policy may forbid using marijuana outside of the workplace, too. So, when an employee requests an exception to use medical marijuana prescribed by their physician at home to treat a serious health condition, can, or even must, the company grant such an exception?
Earlier this year, the NH Supreme Court was confronted with this question and the answer handed down by the justices is, yes, employees in the Granite State have the right to use medical marijuana outside the workplace as treatment for a disability and remain employed, and employers must permit them to do so.
Chief Justice Gordon MacDonald, writing for all five members of the unanimous court, clarified that employees may be entitled to use medical marijuana as an accommodation under the state’s anti-discrimination statute.
The case that led to this decision, Paine v. Ride-Away Inc., featured an employee suffering from post-traumatic stress disorder, for which his physician prescribed him medical marijuana according to NH’s therapeutic cannabis program. The employee submitted a written request to the employer for an exception from its drug testing policy as an accommodation for his disability, which he was treating with medical marijuana. The employee made clear to the company that he was not requesting permission to use marijuana during work hours or to possess the drug on work premises.
The employer denied this request and informed the employee that he could no longer work for the company if he used medical marijuana. The employer ultimately terminated the employee, who then sued under NH’s Law Against Discrimination.
Accommodating Disabilities
Under NH and federal anti-discrimination laws, it is an unlawful and discriminatory for an employer not to make reasonable accommodations for physical or mental limitations of an applicant or employee with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The court determined that NH’s Law Against Discrimination does not contain any language categorically excluding the use of medical marijuana as an accommodation.
The court rejected the employer’s argument that statutory language excluding use or addiction to a federally controlled substance as a disability protected its termination of the employee. The court reasoned that the disability in this case was not drug use or addiction, but the employee’s PTSD and sent the case back to the lower court for further proceedings. So, while it is clear that under NH’s anti-discrimination law that an employer need not recognize illegal drug use as a disability, the employer generally must accommodate an employee’s other disability even if that involves allowing medical marijuana use outside the workplace.
Before this case made its way to NH’s final court, it began in Superior Court where a judge ruled for the employer, accepting the company’s argument that because use and possession of marijuana is criminal under federal law, it could refuse to consider marijuana as an accommodation for an employee’s health condition. Under the Controlled Substances Act, marijuana continues to be classified as a Schedule I controlled substance. Possession and use are criminal throughout the United States, and the employer argued that it was under no obligation to accept its employee’s use of the drug given that status. However, this argument did not win the day on appeal.
Undue Hardships
This decision follows a similar case decided in Massachusetts in 2017, Barbuto v. Advantage Sales and Marketing LLC, which reached the same result, although that case considered Massachusetts law. Of interest to employers, that court considered some potential undue hardships that an employer might face that could justify disallowing employee medical marijuana use.
That court suggested that where an employer faced other contractual or statutory obligations that required it to prohibit employee marijuana use, the employer may be able to demonstrate an undue hardship.
This could include transportation employees in safety-sensitive positions, regulated by the U.S. Department of Transportation, which require drug testing, or federal contractors obligated to comply with the Drug Free Workplace Act. Issues like these were not addressed by NH’s Supreme Court, and it remains for future NH judges to decide if similar exceptions will be recognized here.
The decision in this case means that NH employers must begin to consider employee requests to use medical marijuana outside of the workplace to treat disability as a potential reasonable accommodation.
Samuel H. Martin is an attorney with Jackson Lewis in Portsmouth. He can be reached at 603-5592700, Samuel.Martin@jacksonlewis.com or visit jacksonlewis.com for more information.
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