By Jennifer L. Mora

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 accommodation.

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.