United States: Supreme Court Of New Hampshire Weighs In On Reasonable Accommodations For Medical Marijuana Users
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Seyfarth Synopsis: On January 14, 2022, the
Supreme Court of New Hampshire reversed a trial court decision that
dismissed a former employee’s complaint alleging his employer
failed to consider whether it could reasonably accommodate his use
of marijuana for medicinal purposes. New Hampshire joins a growing
number of other jurisdictions that have found an employer might
have to consider medical marijuana use as a reasonable
The former employee alleged that he suffered from Post-Traumatic
Stress Disorder and that his physician had recommended that he use
marijuana to treat his PTSD. He enrolled in the state’s
therapeutic marijuana program and submitted to his employer a
written request for an exception from its drug testing policy as a
reasonable accommodation for his disability. The former employee
advised that he had no intention of using or possessing during work
hours or on the company’s premises. The employer denied the
request and ultimately terminated him.
The former employee brought an employment discrimination claim
alleging a failure to make a reasonable accommodation for his
disability. The employer moved to dismiss, arguing that because
marijuana is both illegal and criminalized under federal law, the
requested accommodation was facially unreasonable. The trial court
agreed with the employer and granted its motion. The former
employee argued on appeal that the trial court erred in ruling that
as a matter of law, an employer cannot be required to accommodate
an employee’s use of medical marijuana to treat a disability
under state law.
The Supreme Court of New Hampshire agreed with the former
employee and reversed. Focusing on the text of the statute, the
court agreed with the former employee that the New Hampshire
disability and accommodation statute does not contain any language
categorically excluding the use of medical marijuana as an
accommodation. Rather, whether an accommodation for a medical
marijuana user is reasonable is “intrinsically a factual
determination” that “should be decided on a
case-by-case basis depending on the facts of the case.” As a
result, the court reversed and remanded.
New Hampshire is not alone in providing employment protections
to applicants and employees using medical marijuana. In recent
years, more states are passing laws, or their courts are
interpreting existing laws, to protect medical marijuana users,
including in Arizona, Connecticut, Delaware, Massachusetts, New
Jersey, New York, and Rhode Island, among others. It is likely that
list will grow.
Employers in all jurisdictions should exercise caution when
dealing with applicants and employees using medical marijuana.
Before taking any action against medical marijuana users, employers
should review the laws of the states in which they operate and work
with employment counsel to help navigate this complex and rapidly
evolving area of the law.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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