Nevada Supreme Court Issues First Impression Ruling on Workers’ Right to Medical Marijuana

For more than 20 years, Nevada residents have had access to medical marijuana to some extent. Over time, this right (as well as access) has been expanded through a series of legislative moves and ballot measures; eventually, recreational marijuana was also legalized in the state for adults aged 21 and older. But because marijuana remains classified as a controlled substance by the federal government, employers have had some say in whether their workers could partake.

A recent decision by the Nevada State Supreme Court just narrowed that power on behalf of medical marijuana users. Per the Las Vegas Review-Journal:

The Nevada Supreme Court has ruled that employees have the right to sue employers if they are fired for using medical marijuana outside of work.

[…]

The justices found that employers must provide reasonable accommodations for workers who use medical marijuana and ruled that workers have a right to sue if they are fired when a company does not make accommodations. The Supreme Court did not weigh in on what exactly an employer must do to create a reasonable accommodation.

The Appellate lawyers and employment lawyers of Claggett & Sykes authored an amicus brief for the Nevada Justice Association (NJA) supporting workers’ rights in this Nevada Supreme Court appeal. This was absolutely the right outcome for this case, and we believe it will have wider-reaching effects despite the narrowness of the decision.

What the original case was about

In 2019, a man named James Roushkolb was fired from his job at Freeman Expositions LLC, a company which helps set up exhibits at trade shows and conventions. Per the Review-Journal, “a large piece of plexiglass fell and shattered while he and another worker were tearing down a convention exhibit,” which led to Roushkolb’s employer requiring him to take a drug test. Roushkolb had a valid medical marijuana card at the time, and he tested positive.

However, under his collective bargaining agreement, there is a zero tolerance policy for drug and alcohol use; as such, Freeman Expositions contacted his union and said that he “was no longer eligible for dispatch to Freeman Expositions’ worksites,” per the opinion.

Roushkolb filed a lawsuit, citing five claims:

1. Unlawful employment practices
2. Tortious discharge
3. Deceptive trade practices
4. Negligent hiring, training, and supervision
5. Violation of medical needs

The “deceptive trade practices” claim was dismissed by the district court, but the other four moved forward.

What the Nevada Supreme Court was asked to do

In the filing, both Roushkolb and Freeman Expositions asked the Nevada Supreme Court to “clarify Nevada’s laws regarding medical cannabis in the employment context.” Understand that about a month or two ago, the Court issued a decision saying employers can terminate employees for smoking marijuana, even though it’s legal for recreational use in NV, because it’s still illegal under federal law. And, per the court, employees do not have a claim for tortious discharge if that happens.

But this case was different, because Roushkolb had a valid medical marijuana card, and medical marijuana is legal in Nevada. Workers are also legally allowed to request accommodations under the federal Americans with Disabilities Act as well as under NRS 613.222. Freeman claimed no such accommodation had been requested, and that the court should dismiss the count of tortious discharge (AKA, wrongful termination) because employees have no right to that claim for being dismissed for medical marijuana use. The Court, agreed, but found that, under NRS 678C.850(3), employees do have a claim if the employer does not provide reasonable accommodations for the use of medical marijuana off-site and outside of working hours.

What does this mean?

In short, the Nevada Supreme Court held that employees, by and large will not be able to file claims on the grounds of tortious discharge if they are dismissed for using medical marijuana – but offers a narrow window of exception in cases where an employer does not at least attempt to provide reasonable accommodations. Moving forward, if an employee has a valid medical marijuana card, and uses medical marijuana outside of working hours, he or she could have a viable path for a claim if he or she is let go from a job.

It also means that the case will go back to the district court, where Roushkolb will argue that Freeman Expositions violated his rights.

Claggett & Sykes handles personal injury, appeals, and employment claims for clients throughout Nevada. To learn more about our services, please call us in Las Vegas or Reno, or fill out our contact form.