Court: Medical marijuana case could have accommodations

New Hampshire Bar News
Published: 2/14/2022 6:59:45 PM
Modified: 2/14/2022 6:57:56 PM

In what medical marijuana advocates are calling a big win, the New Hampshire Supreme Court held on Jan. 14 that the Superior Court erred when it dismissed plaintiff Scott Paine’s complaint alleging employment discrimination against his former employer, Ride-Away, Inc. (NKA MobilityWorks).

At issue was whether a reasonable accommodation may be made under NH RSA 354-A for the use of therapeutic cannabis, prescribed in accordance with NH law.

Paine, who suffers from PTSD, was legally prescribed marijuana in 2018 to treat his symptoms. Consequently, he asked his employer, a national chain of wheelchair-accessible vehicle providers in Londonderry, to accommodate his disability by excluding him from their strict drug testing policy. He clarified that he was not requesting permission to use cannabis during work hours nor to possess it while on company premises. Ride-Away denied the accommodation and subsequently terminated his employment for use of marijuana.

Paine then filed an employment discrimination suit against Ride-Away for failure to provide a reasonable accommodation for his disability. The employer filed a motion seeking judgment on the pleadings, asserting that the requested accommodation was unreasonable because marijuana is illegal under federal law, and the trial court granted the defendant’s motion, concluding that the law does not require companies to accommodate therapeutic cannabis use.

Finally, Paine appealed to the NH Supreme Court, who unanimously reversed the decision and remanded the case for further proceedings. The Court opined, “we agree with the plaintiff that RSA chapter 354-A does not contain any language categorically excluding the use of therapeutic cannabis as an accommodation.”

Jon Meyer, attorney for the plaintiff, said, “a reasonable accommodation is generally supposed to be a fact-based inquiry, focusing on specifics of what the employee does and doesn’t do as part of their job. We argued that the subsection of the statue was being misinterpreted by the trial court and the Supreme Court agrees.”

The Court held that the use of legally prescribed medical marijuana can be a reasonable accommodation for an employee’s disability under New Hampshire’s law against discrimination, saying that “the trial court erred in determining that the use of therapeutic cannabis prescribed in accordance with RSA chapter 126-X cannot, as a matter of law, be a reasonable accommodation for an employee’s disability under RSA chapter 354.”

When asked about the impact of this decision and what’s next for the plaintiff, Meyer said, “at this point, there’s been no final outcome in the Paine case. What we do know is that any employee who is prescribed medical marijuana for a disability now has the right to request that he/she be permitted to continue using that prescription even if they test positive for a drug test, as a reasonable accommodation.”

Attorney for the defendant, Mark Attorri, was not available for comment.

The American Civil Liberties Union of NH (ACLU) and Disability Rights Center (DRC) submitted a joint amicus brief in the case. Representatives from both organizations agree with the Supreme Court’s ruling.

Henry Klementowicz, Senior Staff Attorney for ACLU said “this decision is a victory for the over ten thousand Granite Staters enrolled in the Therapeutic Cannabis Program, who now will be subject to the same employment protections for disabilities as everyone else. People with disabilities should not be denied employment opportunities based on what is required to treat their conditions.”

“The lower court’s decision was putting a hard limit on an entire type of reasonable accommodation for a particular type of treatment that is legal,” DRC Staff Attorney Sarah Jancarik said. “Reasonable accommodations need to be evaluated on a case-by-case basis and we are pleased that our Supreme Court has reaffirmed this core element of state civil rights law.”

The Court reversed and remanded the case for further proceedings consistent with its opinion.

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