By Elizabeth L. Humphrey and Jennifer L. Mora
Seyfarth Synopsis: Nevada, like most states, has legalized cannabis for medicinal use. Although permitted under state law, a Nevada employee may still face discipline under a company’s drug policy. To address that concern, the Nevada Legislature passed a law requiring employers to attempt to make reasonable accommodations for its employees’ use of medical cannabis outside of the workplace. As a matter of first impression, the Nevada Supreme Court recently decided that employees may sue employers who violate that law.
The plaintiff accepted a journeyman position with an exhibit management company, dispatched through a union. While the plaintiff was tearing down a convention exhibit, a large piece of plexiglass fell and shattered. Following the incident, the employer required the plaintiff to take a drug test, and he tested positive for cannabis. A collective bargaining agreement provision relating to drug and alcohol use provided for zero tolerance. The employer terminated the plaintiff and prohibited the union from dispatching him to company worksites. At the time, the plaintiff held a valid medical cannabis registry identification card issued by the State of Nevada. The plaintiff sued his employer for: (1) deceptive trade practices; (2) violation of NRS 678C.850(3), a law requiring an employer to attempt to make reasonable accommodations for the medical needs of employees who use medical cannabis outside of work while possessing a valid registry identification card; (3) unlawful employment practices under NRS 613.333, a law providing employment protections for the lawful use of products outside of the workplace; (4) tortious discharge; and (5) negligent hiring, training, and supervision. The employer filed a motion to dismiss all claims, which the district court granted but only as to the deceptive trade practices claim.
The employer petitioned the Nevada Supreme Court for a writ of mandamus directing the trial court to dismiss the remaining claims. The Supreme Court granted the petition for mandamus relief in part and directed the trial court to grant the employer’s motion to dismiss with respect to the claims for tortious discharge; unlawful employment practices under NRS 613.333; and negligent hiring, training, and supervision. However, the Court denied the petition with respect to dismissal of the plaintiff’s claim for violation of NRS 678C.850(3).
The Court held that, although NRS 678C.850 did not expressly provide a private right of action, the Nevada Legislature implied a right of action to enforce violations of the statute. Looking to the Legislature’s intent, the Court noted that the plaintiff is part of the class that the statute was intended to benefit because he (1) held a valid medical cannabis registry card and (2) sought to use medical cannabis. The Court then reviewed the statute’s legislative history, which explained that the statute was modeled after an Arizona law that implied a cause of action. Finally, the Court found that implying a cause of action to enforce NRS 678C.850 is consistent with the underlying purposes of the broader statutory scheme. Specifically, the Court noted that NRS Chapter 678C was enacted to enable Nevadans who suffer from certain medical conditions to obtain medical cannabis safely and conveniently. The Court noted that there is no Nevada statute that provides a mechanism to redress employment issues arising out of NRS 678C.850. The Court also found it persuasive that courts in Arizona, Pennsylvania, and Connecticut had implied a private cause of action to enforce statutes similarly directing employers to accommodate employees using medical cannabis.
The Court also found that the lower court should have dismissed the plaintiff’s tortious discharge claim because the public policy set out in NRS 678C.50(3) is not so strong and compelling as to support a claim for tortious discharge. The Court noted that the statutory prohibition against employment discrimination is qualified and does not mandate a particular response by employers – only that the employer attempt reasonable accommodation. Moreover, the implied private cause of action under NRS 678.850(3) cut against permitting a claim for tortious discharge.
In contrast to the cause of action it implied under NRS 678.850, the Court found that the plaintiff could not state a claim under NRS 613.333, a statute making it unlawful for an employer to discharge an employee for engaging in the “lawful use” of any product outside the premises of the employer. Because cannabis possession remains illegal under the federal Controlled Substances Act, the Court reasoned that medical cannabis use cannot constitute “lawful use.” Thus, the plaintiff failed to state a claim because an employee’s discharge for medical cannabis use is not an unlawful employment practice under this statute.
Although the Court found that an employee could sue an employer for failing to attempt to make reasonable accommodations for an employee’s use of medical cannabis, the Court did not define what an employer must do to satisfy its obligation in that regard. A company in a state with laws requiring an employer to consider accommodation of medical cannabis use may find it helpful to evaluate such requests under the same framework and using the same interactive process that is used in assessing other accommodation requests for a disability under the Americans with Disabilities Act. This includes determining whether (1) the employee can continue to perform his or her essential job functions while using medical cannabis off the premises and (2) the employee’s use of medical cannabis places an undue hardship on the company. While a company may be able to accommodate off-duty medical cannabis use for some, it may be hard pressed to do the same for employees whose jobs impact the safety of others, i.e. commercial drivers and heavy machine operators.
Litigation over employee off-duty use of medical cannabis is on the rise. As a result, if a company, after engaging in the interactive dialogue and obtaining appropriate medical documentation, determines that it cannot reasonably accommodate an employee’s request to use medical cannabis outside of the workplace, the company would be wise to consult legal counsel to ensure that it has valid business reasons for denying the accommodation request. For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.