New Hampshire’s supreme court has held that an employee’s off-duty use of medical cannabis (a.k.a. marijuana) can be a reasonable accommodation under state disability law, which applies to employers that have six or more employees (except for non-profits). As a result, covered employers must grant employees’ requests for an exception from their drug policies for using medical cannabis outside of work unless granting an exception would cause an undue hardship.
Medical cannabis is legal under New Hampshire law. Although the cannabis law doesn’t provide employment-related protections, New Hampshire’s disability discrimination law requires covered employers to provide accommodations to employees who have disabilities absent undue hardship.
Action Item
We recommend reviewing your drug policy and testing procedures. While you can still have a “zero-tolerance” policy on the books, if an employee can’t pass a drug test because they use medical cannabis outside of work, you’ll need to grant them an accommodation (which in this case would be an exception to your policy), unless doing so would cause an undue hardship. Keep in mind that undue hardship is a difficult standard to meet and must be determined on a case-by-case basis.
When an employee requests an accommodation, you are required to engage in the interactive process. This might result in, for example, simply granting a drug policy exception, re-assigning the employee, or agreeing to a plan to ensure the employee doesn’t report to work impaired.
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