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Therapeutic cannabis might be a reasonable accommodation for PTSD

Paine v. Ride-Away (New Hampshire 01/14/2022)
Sent to Custom Alerts™ subscribers on 01/14/2022

Paine's physician prescribed cannabis to help treat his PTSD and he enrolled in New Hampshire's therapeutic cannabis program.

Paine submitted a written request to his employer for an exception from its drug testing policy as a reasonable accommodation for his disability. Paine explained that he was not requesting permission to use cannabis during work hours or to possess cannabis on the employer’s premises. Paine was informed that he could no longer work for the company if he used cannabis.

After Paine notified the employer that he was going to treat his PTSD with cannabis, his employment was terminated in September 2018.

Paine sued for employment discrimination, based upon the employer's failure to make reasonable accommodation for his disability. The trial court granted the employer judgment on the pleadings. The New Hampshire Supreme Court reversed.

The court said, "Under the statutory scheme, if an individual claims that illegal drug use or addiction is the condition for which that individual seeks a reasonable accommodation, that individual does not have a 'disability' within the meaning of RSA 354-A:2, IV and is not a 'qualified individual with a disability' within the meaning of RSA 354-A:2, XIVa. In the case before us, however, the plaintiff’s disability is PTSD, not the illegal use of or addiction to a controlled substance."

The court's holding: "We hold that the trial court erred in determining that the use of therapeutic cannabis prescribed in accordance with RSA chapter 126-X cannot, as a matter of law, be a reasonable accommodation for an employee's disability under RSA chapter 354-A." The state statute does not contain any language categorically excluding the use of therapeutic cannabis as an accommodation. "Whether an accommodation is legally required 'should be decided on a case-by-case basis depending on the specific facts of the case.'"

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