Employers Must Engage in an Interactive Process with Employees Who Hold a Valid Medical Marijuana Registry Card
By Rebecca Bruch, Esq
Freeman Expositions v. The Eighth Judicial District Court of the State of Nevada, In and For the county of Clark; and The Honorable Veronica Barisich, District Judge, 138 Nev., Adv. Op. 77 (December 1, 2022)
Last week, on December 1, 2022, the Nevada Supreme Court granted a Writ of Mandamus which creates an absolute requirement for employers to engage in an interactive process with their employees who hold a valid medical marijuana registry card. This case changes the landscape in situations that fall under this factual scenario. In the past, employers have been able to rely on an argument that nothing under any Nevada marijuana statute triggered any rights for any employees, as long as the employer’s policy prohibited use under state or federal law. The facts of this case are not particularly unique, but also not particularly burdensome; however, they do call for vigilant attention to the new mandates.
This case came before the Nevada Supreme Court challenging a district court’s denial in part of a motion to dismiss. NRS 678C.850(3) clearly distinguishes Nevada’s recreational and medical marijuana use in the workplace. Recreational use is not the same as medical use.
Mr. Roushkolb was a journeyman employee dispatched through a Union to work for Freeman Expositions. In that capacity, a large piece of plexiglass fell and shattered. He was required to take a drug test, and he tested positive. The collective bargaining agreement provided for zero tolerance, and he was notified by the Union that he was no longer eligible for dispatch to any Freeman worksites. He held a valid medical marijuana registry identification card issued by the State of Nevada. He filed suit asserting five claims against Freeman Expositions: (1) unlawful employment practices under the lawful off-duty conduct statute; (2) tortious discharge; (3) deceptive trade practices; (4) negligent hiring, training, and supervision; and (5) violation of the medical needs of an employee pursuant to the Nevada medical marijuana statute. Freeman moved to dismiss. The district court dismissed the deceptive trade practices claim, allowing all the other claims to proceed. Freeman petitioned for a writ of mandamus.
Freeman argued that the claim under the medical marijuana statute alleging a violation of its duty to provide reasonable accommodations for his medical needs should have been dismissed because it does not provide a private right of action. Freeman also argued that Mr. Roushkolb did not request an accommodation. Mr. Roushkolb had argued in the lower court that he had sought the accommodation of not being terminated for using medical marijuana outside the workplace during nonworking hours. In the Opinion, the Nevada Supreme Court cited to the statute, NRS 678C.850(3), which says: “… an employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of cannabis if the employee holds a valid registry identification card; provided that such reasonable accommodation would not…” The statute then goes on to list two exceptions to the requirement. The Court ruled that while the statute did not expressly provide a private right of action, it provides an implied private right of action where an employer does not follow the Legislature’s directive that an employer must attempt to accommodate an employee who uses medical cannabis, unless certain exceptions apply.
The Court went on to state that the Legislature set forth the means by which employers and employees should negotiate an employee’s medical cannabis use by providing that employers must “attempt to accommodate the employee…” Interestingly, the Court seemed to recognize that there is a lack of guidance as to what it means to “attempt to accommodate the employee.” The protections only extend to the requirement of an employer to “attempt to accommodate” the medical needs. In a footnote, the Court stated: “We are not presented here with resolving what an employer must do to satisfy its obligation to ‘attempt to make reasonable accommodations for the medical needs of an employee who’ uses medical marijuana.”
Addressing Mr. Roushkolb’s claim under Nevada’s lawful off-duty conduct claim, it referenced its findings in the Ceballos case and found there is no private right of action under NRS 613 and Ceballos, since marijuana remains illegal under federal law.
The Court addressed the negligent hiring, training and supervision claim. Mr. Roushkolb claimed that Freeman failed to train its supervisors on medical marijuana and workplace rights. The Court granted the writ on this claim, holding that the allegations lie in his termination for using medical marijuana. It relates to the conduct of the employer, not another employee, so does not support the claim. There is no cause of action for negligent hiring, training or supervision
What is the take-away? This new case unequivocally creates an obligation for employers to engage in an interactive process with employees who have a valid medical marijuana registry card. But the obligation only requires the employer to “attempt” to make reasonable accommodations for the medical needs of employees who use medical marijuana outside the workplace. The private right of action is triggered where an employer does not “attempt to provide reasonable accommodations.” What is left wide open for employers to struggle with is what satisfies the requirement to “attempt” to make a reasonable accommodation. In any event, under any interpretation of the new finding, an interactive process must be undertaken.
If you have any questions, you are invited to contact any of the employment lawyers at Lemons, Grundy & Eisenberg.