Scott Paine v. Ride-Away, Inc.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2020-0470

SCOTT PAINE

v.

RIDE-AWAY, INC.

Argued: October 14, 2021
Opinion Issued: January 14, 2022

Employee Rights Group, of Portland, Maine (Allan K. Townsend on the
brief), and Backus, Meyer, and Branch, LLP, of Manchester (Jon Meyer on the
brief and orally), for the plaintiff.

Devine Millimet & Branch, P.A., of Manchester (Mark D. Attorri and
Lynnette V. Macomber on the brief, and Mark D. Attorri orally), for the
defendant.

American Civil Liberties Union of New Hampshire Foundation, of
Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint brief),
and Disability Rights Center of New Hampshire, of Concord (Pamela E. Phelan
and Sarah J. Jancarik on the joint brief), as amici curiae.
 MACDONALD, C.J. The plaintiff, Scott Paine, appeals a decision of the
Superior Court (St. Hilaire, J.) granting judgment on the pleadings for his
employment discrimination claim against the defendant, Ride-Away, Inc. See
RSA ch. 354-A (2009 & Supp. 2021). The sole question before us is whether
the court erred in ruling that the use of therapeutic cannabis prescribed in
accordance with New Hampshire law cannot, as a matter of law, be a
reasonable accommodation for an employee’s disability under RSA chapter
354-A. We reverse and remand.

The complaint alleges the following facts, which we accept as true. See
Sivalingam v. Newton, 174 N.H. 489, 494 (2021) (explaining that, in reviewing a
motion seeking judgment on the pleadings, we assume the truth of the facts
alleged by the plaintiff and construe all reasonable inferences in the light most
favorable to the plaintiff). The plaintiff has suffered from Post-Traumatic Stress
Disorder (PTSD) for many years, which substantially limits a major life activity.
He was employed by the defendant at its facility in Londonderry as an
automotive detailer in May 2018. In July 2018, his physician prescribed
cannabis to help treat his PTSD and the plaintiff enrolled in New Hampshire’s
therapeutic cannabis program. See RSA ch. 126-X (Supp. 2021).

The plaintiff submitted a written request to the defendant for an
exception from its drug testing policy as a reasonable accommodation for his
disability. The plaintiff explained that he was not requesting permission to use
cannabis during work hours or to possess cannabis on the defendant’s
premises. The plaintiff was informed that he could no longer work for the
company if he used cannabis. After the plaintiff notified the defendant that he
was going to treat his PTSD with cannabis, his employment was terminated in
September 2018.

The plaintiff sued for employment discrimination, based upon the
defendant’s failure to make reasonable accommodation for his disability. See
RSA 354-A:7, VII(a). The defendant moved for judgment on the pleadings,
asserting that, because marijuana use is both illegal and criminalized under
federal law, the requested accommodation was facially unreasonable.
Following a hearing, the trial court granted the defendant’s motion.

The trial court acknowledged that, under RSA 354-A:7, VII(a), it is a
discriminatory practice for an employer not to make reasonable
accommodations for a qualified employee with a known disability unless the
accommodation would impose an undue hardship on the employer’s business.
The court concluded, however, that the definition of “disability” under RSA
354-A:2, IV “is contingent on the ‘disability’ not including current, illegal use
of, or addiction to a controlled substance as defined in the [federal] Controlled
Substances Act,” which includes marijuana. In addition, the court reasoned
that, although RSA chapter 126-X “makes clear that a qualifying patient may

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use marijuana for therapeutic purposes in New Hampshire even though it is
still illegal to use under federal law,” that statutory scheme “in no way obligates
an employer to accommodate such use.” The court subsequently denied as
“futile” the plaintiff’s motion to amend his complaint because, “as a matter of
law, employers are not required to make reasonable accommodations for
marijuana use.” This appeal followed.

The plaintiff argues on appeal that the trial court erred in ruling that an
employer cannot be required to accommodate an employee’s use of therapeutic
cannabis to treat a disability under RSA chapter 354-A. The plaintiff asserts
that it is clear from the text of RSA 354-A:7, VII “that an across-the-board
exclusion from the obligation of reasonable accommodation, as a matter of law,
is inconsistent with its language.” The defendant counters that RSA 354-A:2,
IV “excludes illegal drug use from the scope of the statute’s protections, and it
expressly incorporates federal law to determine what drug use is ‘illegal.’”
Because marijuana “is still illegal under federal law,” the defendant asserts
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.”

Resolving the question before us requires statutory interpretation. We
review the trial court’s statutory interpretation de novo. Anderson v. Robitaille, 172 N.H. 20, 22 (2019). We look first to the language of the statute itself, and,
if possible, construe that language according to its plain and ordinary meaning.
Id. We give effect to every word of a statute whenever possible and will not
consider what the legislature might have said or add language that the
legislature did not see fit to include. In re J.P., 173 N.H. 453, 460 (2020). We
also construe all parts of a statute together to effectuate its overall purpose and
avoid an absurd or unjust result. Anderson, 172 N.H. at 22-23. We do not
construe statutes in isolation; instead, we attempt to construe them in
harmony with the overall statutory scheme. Id. at 22.

Under New Hampshire law, it is an unlawful discriminatory practice for
an employer “not to make reasonable accommodations for the known physical
or mental limitations of a qualified individual with a disability who is an
applicant or employee,” unless the employer “can demonstrate that the
accommodation would impose an undue hardship on the operation of” its
business. RSA 354-A:7, VII(a). “Disability” is defined as

(a) A physical or mental impairment which substantially limits one
or more of such person’s major life activities;

(b) A record of having such an impairment; or

(c) Being regarded as having such an impairment.

Provided, that “disability” does not include current, illegal use of or

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 addiction to a controlled substance as defined in the Controlled
Substances Act (21 U.S.C. 802 sec. 102).

RSA 354-A:2, IV.

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 or
desires.” RSA 354-A:2, XIV-a. “Reasonable accommodation” may include “[j]ob
restructuring, part-time or modified work schedules, reassignment to a vacant
position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.” RSA 354-A:2, XIV-b(b).

We agree with the plaintiff that RSA chapter 354-A does not contain any
language categorically excluding the use of therapeutic cannabis as an
accommodation. The defendant asserts that because “the use of marijuana
constitutes the ‘illegal use of a controlled substance’ for purposes of RSA 354-
A,” its “failure to accommodate such use is not discrimination because of a
‘disability’ within the meaning of the statute.” The defendant’s reading of the
statute is incorrect.

RSA 354-A:2, IV defines “disability” and, in doing so, excludes from the
law’s protection an individual who claims a disability due to the “current,
illegal use of or addiction to” a federally controlled substance. The plain
language in RSA 354-A:2, IV precludes an illegal drug user or addict from
asserting that his or her drug use or addiction is itself the basis for claiming a
disability under the statute. Thus, 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, XIV-
a. In the case before us, however, the plaintiff’s disability is PTSD, not the
illegal use of or addiction to a controlled substance.

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. Because the defendant’s remaining
arguments are based on its erroneous reading of RSA 354-A:2, IV, we need not
address them. We agree with the plaintiff that because “[r]easonableness is
intrinsically a factual determination,” whether an accommodation is legally
required “should be decided on a case-by-case basis depending on the specific
facts of the case.” Indeed, as the defendant concedes, “if it was under a legal
duty to accommodate the plaintiff’s marijuana use, then the feasibility of his

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requested accommodation would be an issue requiring discovery and further
proceedings below.” Accordingly, we remand for further proceedings consistent
with this opinion.

Reversed and remanded.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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