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| Therapeutic cannabis might
be a reasonable accommodation for PTSD |
Paine v. Ride-Away (New
Hampshire 01/14/2022)
http://case.lawmemo.com/nh/paine.pdf
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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