NV Supreme Court Issues Decision On Medical Marijuana Use

Volume: 21 | Issue: 51
December 8, 2022

Last week, the Nevada Supreme Court issued a decision regarding what types of legal claims may be available to an employee using medical marijuana who is discharged for a positive drug test. The decision helps to further flush out the parameters of Nevada employment law on cannabis use.

First, you may remember that earlier this year, the Nevada Supreme Court ruled that Nevada’s lawful use statute does not apply to off duty recreational marijuana use because marijuana is still illegal under federal law. As such, an employer can lawfully discharge an employee who tested positive on a drug test due to his recreational marijuana use, even though recreational marijuana is lawful in Nevada and the employee used it off duty.

In this new case, Freeman Expositions, LLC v. District Court, the Nevada Supreme Court extended its decision on Nevada’s lawful use statute to medical marijuana. The employee in Freeman Expositions was discharged for a positive drug test but held a valid medical cannabis registry identification card issued by the State of Nevada. The Nevada Supreme Court determined that this employee could not sue his employer under Nevada’s lawful use statute because the law only protects an employee’s use of a product outside of the workplace if the product is lawful under all laws applicable in Nevada.

However, the employee could file a lawsuit under Nevada’s medical marijuana law, specifically, Nevada Revised Statute 678C.850. This law requires an employer to attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of cannabis. The Court did not rule on what an employer must do to satisfy this obligation, and simply allowed the employee’s lawsuit to proceed beyond an initial motion to dismiss.

Finally, the Court decided that an employee allegedly discharged for a violation of Nevada’s medical marijuana law could not file a claim for tortious discharge. This legal claim is limited to “rare and exceptional cases where an employer’s conduct violates strong and compelling public policy.” It has been applied in only three circumstances in Nevada – when an employee was terminated for either (1) refusing to engage in unlawful conduct, (2) refusing to work in unreasonably dangerous conditions, or (3) for filing a workers’ compensation claim. While the Court reasoned that Nevada public policy supports broad protections for medical cannabis users (as opposed to recreational users), it determined that the public policy was not so strong and compelling as to permit the limited claim of tortious discharge, especially because the employee could file a lawsuit under the medical marijuana statute to protect his rights.

This case will now return to the trial court, and we will continue to monitor its progress. If you have questions about employment law and marijuana use or this new decision, please contact a KZA attorney. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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