Let’s talk about an employment law issue not related to COVID-19, specifically cannabis.
Cannabis use is a vexing subject among workplace law enthusiasts. On the one hand, penalizing applicants or employees for the off-duty consumption of either legal or decriminalized cannabis seems outmoded to some (not to mention antithetical to the challenges facing most businesses in a tight labor market). On the other hand, workplace advisers have long maintained that employers are not obligated to accommodate an employee’s use of federally controlled substances, like marijuana. Cannabis policies have increasingly become value statements, where each business is free to determine what values to uphold or forego around the usage of cannabis.
A recent opinion from the New Hampshire Supreme Court in the case Scott Paine v. Ride-Away Inc. has changed the landscape around cannabis use and narrowed the latitude thought to be enjoyed by businesses, particularly where disability rights are concerned.
According to the allegations made, the plaintiff, Scott Paine, worked for Ride-Away as an automotive detailer. He suffered from post-traumatic stress disorder for many years and was eventually prescribed cannabis as treatment. This was done through New Hampshire’s therapeutic cannabis program.
Because Paine was drug-tested regularly at Ride-Away, he requested an exception from the company’s drug-testing protocol. His request was limited to off-duty conduct only; he never requested to use cannabis or to be under the influence of it while at work.
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For reasons that are not explained in the court’s opinion, Ride-Away purportedly denied Paine’s request and ended their employment relationship.
Paine sued for failing to accommodate treatment of his disability under New Hampshire’s anti-discrimination law, RSA 354-A. Ride-Away contested the suit on the grounds that the definition of “disability” excludes the “current, illegal use of or addiction to a controlled substance as defined in the Controlled Substances Act.” Because marijuana remains a federally controlled substance notwithstanding New Hampshire’s therapeutic cannabis program, Ride-Away argued that it had no legal obligation to accommodate Paine’s use of cannabis to treat his PTSD.
The court disagreed and found that Paine was entitled to an interactive process.
The court found that, while illegal drug use is not a protected disability, the law does not preclude treatment of a disability with cannabis — and likely other federally controlled substances like LSD. The distinction here is subtle, but mighty.
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Paine’s disability was PTSD, not illegal drug use or addiction to an illegal drug. The law, according to the court, protected Paine’s decision to treat with therapeutic cannabis such that Ride-Away would be required to explore reasonable accommodations for him. In other words, the court recognized, for the first time, that a tolerated use of cannabis could be an accommodation under disability rights laws.
While New Hampshire has legalized therapeutic cannabis, the state remains an island of prohibition — albeit decriminalized prohibition — when it comes to recreational use. Regardless, it is clear that New Hampshire businesses will need to address cannabis use by employees at some point.
Paine is an important, clarifying case, but many things are left unsaid in the opinion. It does not address situations where a prohibition on drug use (even off-duty consumption) is mandated by a federal agency like the U.S. Department of Transportation. Nor does it address situations where the submission of a negative drug test is an essential function of an employee’s job.
Paine also does not address questions of self-medication. If the employee had requested an accommodation for recreational cannabis use, the court may have viewed his case differently and found that his alleged disability (in addition to PTSD) aligned more closely with illicit drug use.
Importantly, the court does not say that businesses must allow cannabis as an accommodation. It only says that tolerated cannabis use could be one of many accommodations considered. The case serves as an important reminder that when it comes to accommodations, an individualized approach is best.
Brian Bouchard, a litigator focused on labor and employment, land use and construction issues, is a shareholder in the firm of Sheehan Phinney.
The case's effect on business
In light of the New Hampshire Supreme Court’s Paine ruling, businesses would be well advised to:
· Recognize that a reasonable accommodation may include use of illicit drugs prescribed by a medical provider.
· Engage in an individualized interactive process whenever an employee requests a reasonable accommodation, which under state law may 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.
· Review policies on drug testing and ask whether those policies appropriately reflect the business’s values, hiring needs, and focus for policy enforcement.
· Review policies on off-duty conduct. As a business, do you want to be responsible for policing what happens outside of the workplace?
· Review job descriptions for every position and carefully calibrate what is considered an essential function of the job.
These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.
This article originally appeared on Portsmouth Herald: Cannabis as a workplace accommodation? Yes, says NH Supreme Court