Is your company required to accommodate employee medical marijuana use? If you’re established in Texas, probably not. But a legal trend in the U.S. is growing by the year. One such example is in New Hampshire. On January 14, 2022, the New Hampshire Supreme Court reversed a court decision that initially dismissed a former employee’s complaint alleging his company failed to reasonably accommodate his use of marijuana for medical purposes.

New Hampshire joins a growing number of 15-plus states that have found an employer should consider medical marijuana use as a reasonable accommodation. Additional states with similar rulings include Arizona, Arkansas, Connecticut, Delaware, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Utah and West Virginia.

The former employee in New Hampshire alleged he suffered from Post-Traumatic Stress Disorder (PTSD) and that his physician recommended he use marijuana to treat the disorder. He promptly enrolled in the state’s therapeutic marijuana program and submitted a written request for an exception from his employer’s drug testing policy.

The former employee stated he had no intention of using or possessing marijuana during work hours. The employer denied the request and eventually fired him. The former employee immediately filed a discrimination claim alleging failure to make a reasonable accommodation for his disability.

The company moved to dismiss, arguing that because marijuana is illegal and criminalized under federal law, the accommodation was unreasonable. The judge agreed with the employer and granted the motion. The former employee immediately appealed the ruling.

The New Hampshire Supreme Court agreed with the ex-employee and reversed. The court stated the New Hampshire disability statute does not contain any language categorically excluding the use of medical marijuana as an accommodation.

The court stated 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.” Thus, the court reversed and remanded.

As stated earlier, New Hampshire is one of many states to provide employment protections to employees using medical marijuana. Over the past several years, more states are passing laws and courts are interpreting existing laws to protect medical marijuana users.

The list of states is expected to grow. Employers would be wise to utilize caution when dealing with employees and applicants using medical marijuana. Before taking action, employers should review their state’s laws on medical marijuana use and work with counsel to help navigate this rapidly developing area.

The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not construed as legal advice, express or implied.