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Bar News - December 21, 2016

Section Connection: Labor & Employment Section Panel Addresses Medical Marijuana in the Workplace


Debra Dyleski-Najjar and Alexander Najjar of Najjar Employment Law Group listen to a presentation by Leslie Johnson of Law office of Leslie H. Johnson during the section meeting Nov. 18.

“Medical Marijuana in the Workplace” was the topic de jour at the NH Bar Association Labor and Employment Section’s Nov. 18 meeting. A lively panel discussion, including attorneys from the NHBA Workers’ Compensation Section, explored the impact of RSA 126-X:4, VI, the state’s medicinal marijuana statute, in the workplace.

Leslie Johnson presented the workers’ compensation claimant’s perspective on obtaining coverage for medical marijuana, and Margaret Sack presented the workers’ compensation carrier’s perspective. Debra Dyleski-Najjar rounded out the panel with a discussion of best practices around medical marijuana in the workplace.

While there is some uncertainty about application and interpretation of New Hampshire’s medical marijuana law, the Department of Labor (DOL) has already heard two medical marijuana cases and denied workers’ compensation coverage in both. In one of the cases, the DOL held that RSA 126-X:3, which exempts health insurance providers and health care plans from paying for medical marijuana, also applies to Workers’ Compensation carriers. RSA 126-X:3 does not explicitly identify Workers’ Compensation carriers as exempt, but the DOL’s interpretation will likely be applied going forward.

The panel also discussed ethical issues for attorneys representing individuals qualified to use medical marijuana. Federal law continues to categorize marijuana as a Schedule I drug with no accepted medical uses. This creates an ethical conundrum. Rule 1.2 (d), Scope of Representation and Allocation of Authority Between Client and Lawyer, prohibits attorneys from counseling or assisting a client in conduct which the attorney knows is criminal. Additionally, Rule 8.4, Misconduct, states that it is professional misconduct for an attorney to commit a criminal act that reflects adversely on honesty, trustworthiness or fitness as an attorney. Accordingly, while it is clear that attorneys may advise clients on the law pertaining to medical marijuana, taking steps to assist the client in obtaining marijuana could violate the rules. Clarity on this issue will require a change to the Rules of Professional Conduct or to federal law.

The conflict between state and federal law also presents practical challenges to employers. The panel discussed best practices for dealing with medical marijuana issues in the workplace including, for instance, the question of whether reasonable accommodation is required under state law.

The Massachusetts Commission Against Discrimination and the New Hampshire Human Rights Commission have suggested that they will treat medical marijuana accommodation on par with accommodation for the use of opiate pain medication. Courts may take a different stance, however, as was illustrated recently in Barbuto v. Advantage Marketing Sales LLC, the first Massachusetts case involving an employee’s termination for use of medical marijuana. The trial court granted defendants’ motion to dismiss five of six counts, including those counts alleging disability discrimination. The case is now on appeal.

The NHBA Labor and Employment Section’s next meeting is scheduled for Jan. 20, 2017. Members are encouraged to join the section for a discussion of “Workplace Wellness: New EEOC Guidelines and Pitfalls of Wellness Incentive Programs.” The presentation will be paired with a Friday afternoon “Wine Down.”

For more information about NHBA section membership or activities, please contact Section Coordinator Deb Bridges.

Marcie Vaughan

Marcie E. Vaughan practices law in Portsmouth, NH, with a focus on employment law and conducting independent workplace investigations. She is co-clerk of the NHBA Labor and Employment Law Section.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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