New Hampshire Drug Testing Laws for Employers

Nothing Prescribed

RSA Title XXIII covers the Department of Labor, public employee labor relations, protective legislation, whistleblowers, WARN, veterans' preference, use of criminal records in employment decisions, employment of minors, workplace safety and health, toxic substances, employee leasing, apprenticeship, minimum wage, workers' compensation, unemployment and family and medical leave insurance. It contains no drug or alcohol testing chapter.

So random selection, periodic testing, post-accident triggers and pre-employment screening are all unconstrained by any testing statute, with no policy approval, no notice period, no probable-cause standard, no laboratory or MRO mandate and no retest right.

Decriminalized Is Not Legalized

New Hampshire is unusual among its neighbors. Under RSA 318-B:2-c, knowing possession of three-quarters of an ounce or less of marijuana, or five grams or less of hashish, is a violation subject to a fine schedule. A person 21 or older possessing a personal-use amount of a regulated marijuana-infused product — obtained from a state where adult sales are legal and regulated, in original child-resistant labeled packaging, containing no more than 300 milligrams of THC — is likewise guilty of a violation.

It remains a civil violation with a fine, there is no adult-use retail market, and consequently there is no lawful adult recreational use for an off-duty employment protection to attach to. A zero-tolerance cannabis rule carries no statutory conflict for non-patients here.

The Therapeutic Cannabis Question Is Genuinely Open

Therapeutic cannabis is legal under RSA 126-X, and the employer language is helpful as far as it goes. RSA 126-X:3, III(c) provides that nothing in the chapter requires any accommodation of therapeutic use on the property or premises of any place of employment, and that the chapter shall in no way limit an employer's ability to discipline an employee for ingesting cannabis in the workplace or for working while under the influence.

But two absences matter. The chapter has no employment-specific nondiscrimination section, and it has no rule saying a patient cannot be deemed under the influence based on metabolites — the opposite of Delaware, where that rule is explicit.

The open question is what RSA 126-X:2, I does. It provides that a qualifying patient shall not be subject to arrest, prosecution or penalty under state or municipal law, or denied any right or privilege, for the therapeutic use of cannabis in accordance with the chapter. Whether "denied any right or privilege" reaches employment decisions, and whether the New Hampshire Law Against Discrimination at RSA 354-A requires an employer to consider therapeutic cannabis as a reasonable accommodation for an underlying disability, turn on case law rather than statutory text.

Those questions are unsettled and we are not going to resolve them here. The point worth making is the one employers get wrong in the other direction: the absence of a protection clause is not a green light. Get counsel's view before acting on a known registry participant's positive.

The Supervisor Trap in the Compensation Bar

RSA 281-A:14 provides that the employer shall not be liable for any injury to a worker caused in whole or in part by intoxication, or by the serious and willful misconduct of the worker. That "in whole or in part" standard is materially broader than the "as a result of" language Delaware uses or the "occasioned by" language in Rhode Island, which makes New Hampshire's bar comparatively easy for an employer to invoke.

Then comes the exception: the intoxication provision shall not apply if the employer knew that the employee was intoxicated.

That is a supervisor-behavior rule dressed as a compensation rule. If a supervisor suspects impairment and lets the employee finish the shift — the common, conflict-avoiding instinct — and the employee is then injured, the employer has likely lost the defense it would otherwise have had. The answer is a documented remove-from-duty step: observe, document, remove, test. Waiting and seeing is the expensive option here.

Note also how intoxication is defined. RSA 281-A:2, XII-a defines it by reference to alcohol or a controlled drug under RSA 318-B:1, and expressly excludes an employee's use of a controlled drug for which a prescription has been issued, where the use accords with the instructions. A validly prescribed medication taken as directed does not trigger the bar.

Where the Effort Is Better Spent

Because New Hampshire imposes so little, the work here is not compliance drafting. It is two operational things: training supervisors to remove and document rather than tolerate, and deciding in advance how you will handle a known therapeutic cannabis cardholder's positive result — because the statute will not decide it for you.

New Hampshire's employment base runs through advanced manufacturing and precision machining, healthcare, aerospace and defense electronics, tourism and food service, retail and distribution, and construction. Precision manufacturing and defense electronics both carry federal contract exposure, which usually simplifies the cannabis question for those populations while leaving it open for everyone else.