Let’s speak about an employment legislation subject not associated to Covid-19, particularly hashish.
Hashish use is a vexing topic amongst office legislation fanatics. On the one hand, penalizing candidates or staff for the off-duty consumption of both authorized or decriminalized hashish appears outmoded to some (to not point out antithetical to the challenges dealing with most companies in a good labor market). However, office advisors have lengthy maintained that employers will not be obligated to accommodate an worker’s use of federally managed substances, like marijuana. Hashish insurance policies have more and more change into worth statements, the place every enterprise is free to find out what values to uphold or forego across the utilization of hashish.
A latest opinion from the New Hampshire Supreme Court docket within the case Scott Paine v. Experience-Away Inc. has modified the panorama round hashish use and narrowed the latitude considered loved by companies, significantly the place incapacity rights are involved.
The case
In accordance with the allegations made, the plaintiff, Scott Paine, labored for Experience-Away as an automotive detailer. He suffered from post-traumatic stress dysfunction for a few years and was ultimately prescribed hashish as therapy. This was completed by New Hampshire’s therapeutic hashish program.
As a result of Paine was drug-tested usually at Experience-Away, he requested an exception from the corporate’s drug-testing protocol. His request was restricted to off-duty conduct solely; he by no means requested to make use of hashish or to be below the affect of it whereas at work.
For causes that aren’t defined within the court docket’s opinion, Experience-Away purportedly denied Paine’s request and ended their employment relationship.
Paine sued for failing to accommodate therapy of his incapacity below New Hampshire’s anti-discrimination legislation, RSA 354-A. Experience-Away contested the go well with on the grounds that the definition of “incapacity” excludes the “present, unlawful use of or habit to a managed substance as outlined within the Managed Substances Act.” As a result of marijuana stays a federally managed substance however New Hampshire’s therapeutic hashish program, Experience-Away argued that it had no authorized obligation to accommodate Paine’s use of hashish to deal with his PTSD.
The court docket disagreed and located that Paine was entitled to an interactive course of.
The court docket discovered that, whereas unlawful drug use is just not a protected incapacity, the legislation doesn’t preclude therapy of a incapacity with hashish — and sure different federally managed substances like LSD. The excellence right here is refined, however mighty.
Paine’s incapacity was PTSD, not unlawful drug use or habit to an unlawful drug. The legislation, in keeping with the court docket, protected Paine’s resolution to deal with with therapeutic hashish such that Experience-Away could be required to discover cheap lodging for him. In different phrases, the court docket acknowledged, for the primary time, {that a} tolerated use of hashish might be an lodging below incapacity rights legal guidelines.
Whereas New Hampshire has legalized therapeutic hashish, the state stays an island of prohibition — albeit decriminalized prohibition — relating to leisure use. Regardless, it’s clear that New Hampshire companies might want to tackle hashish use by staff sooner or later.
Paine is a vital, clarifying case, however many issues are left unsaid within the opinion. It doesn’t tackle conditions the place a prohibition on drug use (even off-duty consumption) is remitted by a federal company just like the U.S. Division of Transportation. Nor does it tackle conditions the place the submission of a destructive drug check is a vital perform of an worker’s job.
Paine additionally doesn’t tackle questions of self-medication. If the worker had requested an lodging for leisure hashish use, the court docket might have seen his case in another way and located that his alleged incapacity (along with PTSD) aligned extra intently with illicit drug use.
Importantly, the court docket doesn’t say that companies should permit hashish as an lodging. It solely says that tolerated hashish use might be one in all many lodging thought of. The case serves as an necessary reminder that relating to lodging, an individualized method is greatest.
Brian Bouchard, a litigator targeted on labor and employment, land use and building points, is a shareholder within the agency of Sheehan Phinney.
The Paine case’s results on enterprise
In gentle of the NH Supreme Court docket’s Paine ruling, companies could be nicely suggested to:
- Acknowledge {that a} cheap lodging might embrace use of illicit medicine prescribed by a medical supplier.
- Interact in an individualized interactive course of every time an worker requests an inexpensive lodging, which below state legislation might embrace job restructuring, part-time or modified work schedules, reassignment to a vacant place, acquisition or modification of apparatus or gadgets, acceptable adjustment or modifications of examinations, coaching supplies or insurance policies, the supply of certified readers or interpreters, and different related lodging for people with disabilities.
- Evaluate insurance policies on drug testing and ask whether or not these insurance policies appropriately mirror the enterprise’s values, hiring wants, and focus for coverage enforcement.
- Evaluate insurance policies on off-duty conduct. As a enterprise, do you wish to be answerable for policing what occurs outdoors of the office?
• Evaluate job descriptions for each place and punctiliously calibrate what is taken into account a vital perform of the job.
