The Americans with Disabilities Act, as well as New Hampshire’s Law Against Discrimination – RSA 354-A, require employers to provide qualified disabled employees with reasonable accommodations that will enable the employee to perform the essential functions of their job. Workplace accommodations commonly include modification of how work is performed, modification of employer policies and/or facilities, and/or the purchase of equipment to be used in the workplace.
Despite the fact that it continues to be listed as a Schedule I drug under the federal Controlled Substances Act, many states, including New Hampshire, have adopted laws permitting the therapeutic use of cannabis. As a result, employers are being confronted with employee accommodation requests related to the use of cannabis. While the definition of “disability” was significantly broadened in 2008, both the ADA and state law expressly state that the definition does not include disabilities that are the result of current illegal drug use. Therefore, these requests beg the question – are employers required to permit the use of cannabis as an accommodation for an employee’s disability, despite the fact that the drug continues to be illegal under federal law?
On January 14, 2022, the New Hampshire Supreme Court issued a decision in Paine v. Ride-Away, Inc., which moved us one step closer to answering this question.