The New Hampshire Supreme Court has ruled that an employee may be entitled to use medical marijuana as an accommodation under the New Hampshire Law Against Discrimination (NHLAD).
Background:
Under the federal Controlled Substances Act of 1970, it is illegal to possess, use, buy, sell, or cultivate cannabis. However, some states have enacted laws that provide protections to applicants and employees using medical marijuana outside the workplace.
The federal Americans with Disabilities Act (ADA) (for employers with 15 or more employees) and the NHLAD (for employers with six or more employees) require employers to provide reasonable accommodation to employees with known physical or mental limitations unless doing so would impose an undue hardship on the business.
The details:
A New Hampshire employer denied an employee’s request to use medical marijuana outside of work as an accommodation for PTSD, told the employee that he could no longer work for the company if he used marijuana, and terminated the employee after he notified the business that he intended to use medical marijuana to treat his disability.
The employee, whose written request did not ask for permission to use or keep marijuana at work, sued the employer for failing to make an exception from its drug testing policy as an accommodation. The Superior Court sided with the employer, stating the request was unreasonable because marijuana is illegal under federal law.
The Supreme Court later reversed the Superior Court’s decision, finding that:
· The NHLAD doesn’t explicitly exclude medical marijuana as an accommodation.
· An employer’s decision to terminate an employee is not protected by the NHLAD’s exclusion of the use or addiction to a federally controlled substance as a disability; and
· In this case, the employee’s disability was PTSD, not drug use or addiction.
Next steps:
New Hampshire employers should review their policies, procedures and training, and consider employee requests to use medical marijuana outside of the workplace as a potential reasonable accommodation.