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  4.  » NH Supreme Court Decides That Employees With Disabilities Cannot Be Automatically Fired, Or Denied A Job, Because They Take Prescribed Medical Marijuana

NH Supreme Court Decides That Employees With Disabilities Cannot Be Automatically Fired, Or Denied A Job, Because They Take Prescribed Medical Marijuana

In a case brought by Scott Paine, the New Hampshire Supreme Court decided that employees with disabilities are protected from being fired for using medical marijuana outside of work if its permitted use is a reasonable accommodation for their disability.

Mr. Paine worked as an auto detailer for Ride-Away which is a national company that is a provider of accessible vehicles designed for individuals with disabilities. He had a prescription for medical marijuana which he takes at home as a treatment for his PTSD. The medication made it possible for him to continue his work.

Ride-Away adopted a policy of drug testing all employees. When Mr. Paine was informed of that policy, he disclosed the fact that he was taking medical marijuana for a disability, and requested that a positive test result not be used to terminate his employment. After discussions back and forth, that request was denied, and he was fired.

Mr. Paine filed a charge of disability discrimination with the New Hampshire Human Rights Commission which went to superior court. The company argued that regardless of his need for medical marijuana and regardless of whether it affected his work, he could be fired for a positive drug test because medical marijuana was illegal under federal law. The trial court judge agreed and dismissed the case.

Mr. Paine then appealed to the New Hampshire Supreme Court which reversed the trial court. Based upon a close examination of the language of RSA 354-A, which is the state law prohibiting discrimination, the court ruled that it did not bar medical marijuana as a reasonable accommodation even though other courts have held that it was excluded by the different language contained in the federal Americans with Disabilities Act. Accordingly, the court sent the case back to the trial court to make a factual determination whether permitting Mr. Paine to continue taking medical marijuana would have been a reasonable accommodation or whether it would have caused an undue burden on the employer. Both the Disabilities Rights Center and the N.H. Civil Liberties Union supported Mr. Paine’s position.

The same issue has come up in many other states with courts ruling differently depending in part upon the language of the state disability discrimination and medical marijuana laws. Mr. Paine’s victory means that the 10,000 plus individuals in this state who are currently taking medical marijuana cannot be automatically fired just because they take medical marijuana. Instead they are entitled to a factual determination of whether permitted use of medical marijuana would be a reasonable accommodation for their disabilities.

The bottom line for persons with disabilities, a category likely to cover most employees who are prescribed medical marijuana, is that their marijuana use outside of work cannot be ground for denial of a job, denial of a promotion or firing unless it adversely affects the quality of their work or otherwise causes an undue burden to the employer. However, this ruling is unlikely to help employees holding positions requiring drug testing under federal law.

Mr. Paine was originally represented by Allen Townsend of the Employees Right Group out of Portland, Maine. On appeal to the New Hampshire Supreme Court, Jon Meyer worked with Attorneys Townsend and Chad Hansen as Co-Counsel for Mr. Paine.