Can Workers Be Fired for Medical Marijuana Use?

Scott Paine has suffered from the disability of Post-Traumatic Stress Disorder (PTSD) for many years. He was employed by Ride-Away, Inc. at its Londonderry facility as an automotive detailer in May 2018. In July 2018, his physician prescribed cannabis to help treat his PTSD, and Mr. Paine enrolled in New Hampshire’s therapeutic cannabis program. He submitted a written request to Ride-Away for an exception from its drug testing policy as a reasonable accommodation for his disability of PTSD. After he notified the company that he intended to treat his PTSD with cannabis, he was fired in September 2018.

Because marijuana “is still illegal under federal law,” the employer asserted that it “was under no duty to accommodate the plaintiff’s marijuana use, even if it was off-site and even if he was an authorized user under RSA 126-X,” our state medical marijuana law.

This type of scenario raises the question – Can workers be fired for using medical marijuana? Legally, no, an employee cannot be fired because of medical marijuana use. Read on to learn more about this issue.

Does an Employer Have a Duty to Accommodate Disability Where the Employee Treats His Disability with Medical Marijuana?

A “[q]ualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds.” RSA 354-A:2, XIV-a. PTSD is a disability, and treatment of Mr. Paine’s PTSD with medical marijuana would permit him to perform the essential functions of his job.

The statute further states that it is unlawful and discriminatory for an employer “not to make reasonable accommodations” to the known disability of an employee. RSA 354-A:7, VII.

How Does the Law Treat Illegal or Unprescribed Marijuana Use?

Unlike in Mr. Paine’s case, if an individual claims that ongoing illegal drug use or ongoing 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 therefore not entitled to accommodation to a disability in the workplace. Only recovery from prior addiction is a protected disability.

About 10,000 people in this state are enrolled in the medical cannabis program and cannot be fired for off-hours use even though marijuana is illegal under federal law. If you were fired for medical, lawful marijuana use, our firm is ready to help.