2022 WL 129928 (N.H. 2022)
Supreme Court of New Hampshire
The law against discrimination has created a duty for employers to make reasonable accommodation for employees with known physical or mental limitations. The employer will only be exempt from this duty if they can demonstrate that the accommodation would impose an undue hardship on the operation of the business. An employee who was prescribed cannabis to help treat his post-traumatic stress disorder (PTSD) brought a claim of employment discrimination against his employer for failing to accommodate his disability and for terminating his employment. The trial court had ruled that the use of therapeutic cannabis prescribed in accordance with New Hampshire law could not be considered as a reasonable accommodation for an employee’s disability. However, this decision was reversed by the Supreme Court of New Hampshire on appeal.
The plaintiff Scott Paine (“Paine”) had suffered from PTSD for several years. He was employed by the defendant as an automotive dealer in May 2018. In July 2018, his physician prescribed him cannabis to help treat his PTSD and the plaintiff enrolled in New Hampshire therapeutic cannabis program. Furthermore, the plaintiff submitted a request to his employer (defendant) for an exemption from its drug testing policy as a way to accommodate for his disability. The plaintiff had included in his submission that he did not request to use cannabis during working hours or even possess cannabis on work property. The plaintiff was told that he would no longer be allowed to work for the company if he started using cannabis. In September 2018, the plaintiff was terminated after he had notified the defendant that he would treat his PTSD with cannabis. The plaintiff sued for employment discrimination as the defendant would not accommodate for his disability. The defendant argued that marijuana is illegal and criminalized under federal law and the request for accommodation was unreasonable.
The trial court ruled in favour of the defendant stating that the use of therapeutic cannabis could not be considered as a reasonable accommodation for an employer to make. The court relied on the definition of “disability” outlined in RSA 354-A:2. It was defined as physical or mental impairment which substantially limits a person’s major life activities, having a record of such an impairment or being regarded as having such an impairment. The court added that the definition of ‘disability’ does not include the illegal use of, or addiction to a controlled substance as defined in the (federal) Controlled Substances Act, which includes marijuana. The court did acknowledge that even though within the state of New Hampshire cannabis is legal for therapeutic purposes, it is illegal federally. Therefore, an employer is under no obligation to accommodate the use of cannabis for its employees.
- Should Paine be allowed to use prescribed cannabis to help treat his disability even though cannabis is federally illegal?
- Did the trial judge err in their interpretation of the statutory definition of “disability”?
- Does the accommodation needed for Paine to perform his job impose an undue hardship on the defendant?
- Was Paine wrongfully terminated for his use of medical cannabis?
Upon appeal the plaintiff argued that the trial court erred in ruling that the employer was not required to accommodate an employee’s need for therapeutic cannabis to treat his PTSD. The appellant claimed under RSA 354-A:7, VII “that an across-the-board exclusion from the obligation of reasonable accommodation, as a matter of law, is inconsistent with its language.”
The defendant argued that RSA 354-A:2, IV “excludes illegal drug use from the scope of the statue’s protections and it expressly incorporates deferral law to determine what drug use is ‘illegal.’” Therefore, since marijuana was still prohibited under federal law, there was no duty to accommodate the appellant’s cannabis use.
Even though cannabis is federally illegal it has been legal for medical purposes in the state of New Hampshire since 2013. Furthermore, Paine satisfies the definition of “disability” as PTSD is a recognized disability. The accommodation requested by Paine would not impose an undue hardship upon the employer therefore, it is necessary for Paine to be accommodated as per RSA 354-A:7, VII. The plaintiff is a qualified individual with a disability and should be allowed to use prescribed cannabis to help alleviate his disability.
The Supreme Court of New Hampshire looked at the language of the statute that defined ‘disability’, ‘qualified individual with a disability’, and a ‘duty to accommodate’ to resolve the appeal. In the state of New Hampshire, it is unlawful for an employer “not to make reasonable accommodations for the known physical or mental limitations of a qualified individual with a disability who is an applicant or employee,” unless the employer “can demonstrate that the accommodation would impose an undue hardship on the operation of its business.”
The court also defined a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Furthermore, reasonable accommodation can include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities as stated in RSA 354-A:2, XIV-b(b).
In its ruling the court found that Paine satisfied the definition of “disability”. An individual cannot claim illegal drug use or addiction as a disability and seek reasonable accommodation. The plaintiff’s disability was PTSD and not the illegal use of a controlled substance. Therefore, the defendant has a legal duty to accommodate the plaintiff’s cannabis use. The trial judge misinterpreted the statutory definition of “disability”. Per RSA 354-A:2, IV prevents an illegal drug user or addict from claiming a disability under the statute. Under this legislation an individual cannot assert that his or her drug use or addiction is a form of disability. The trial judge interpreted the use of cannabis by Paine as an illegal drug user who was asserting cannabis use as a disability. However, this was incorrect as the plaintiff’s disability was PTSD and cannabis was used to treat that disability.
The accommodation needed for Paine to perform his job would not cause an undue hardship on the defendant. Paine specifically asked in his request to be exempt from the drug testing policy and that he was not requesting permission to use cannabis during work hours. Furthermore, the defendant would not have any additional cost by accommodating Paine as they would not be responsible for paying for the cannabis. Paine simply asked that he be exempted from the drug testing policy.
Therefore, Paine was wrongfully terminated as there was no attempt on behalf of the defendant to accommodate his request. As said by the trial court it is discriminatory practice for an employer not to accommodate an employee with a known disability unless that accommodation would impose an undue hardship. The accommodation that was necessary for Paine to carry out his job would not have imposed an undue hardship on the employer’s business, that being the exemption from the drug testing policy.
The Supreme Court of New Hampshire reversed the original decision made by the trial court and remanded the matter back to the trial court.
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