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A Marijuana Dispensary’s Liability for Negligent Sales

With the decriminalization of recreational marijuana in Nevada much of the conversation about the topic of marijuana use and sales has shifted to the nonmedical side of the business. But medical marijuana has been an important resource for patients who have been prescribed its use under Nevada’s 2001 law authorizing its use. Like a conventional pharmacy, a medical marijuana dispensary can make mistakes that can have serious consequences for patients.

Medical marijuana dispensaries are required to follow a range of protocols designed to prevent unauthorized sales and protect patients from improperly tested products:

  • Dispensaries may only sell to individuals holding valid medical marijuana cards issued by the Nevada Division of Public and Behavioral Health. The DPBH maintains an online registry of cardholders, meaning there is even less of an excuse for dispensaries that run afoul of this rule.
  • Nevada law requires dispensaries to have all of their products tested by an independent testing laboratory prior to their sale to patients. These labs are required to test every product (including edible products) for four things: (1) the concentration of active ingredients in the product, (2) the presence and identification of molds and fungus, (3) the composition of the product, and (4) the presence of chemicals, including pesticides and herbicides. NRS 453A.368.
  • Every product sold by a medical marijuana dispensary must be labeled with disclosures about the source of the marijuana used in the product, the product’s potency, and other information.

A well-run dispensary shouldn’t ever make obvious errors like dispensing to a patient who does not have a lawful medical marijuana card. But one can imagine various ways that a dispensary could make errors or, out of lack of caution or neglect, dispense the wrong product. A patient who is expecting a relatively low-dose product but instead receives a high potency one could experience overdose symptoms, including panic attacks, confusion, and increased heart attack risk.

When such mistakes occur the patient who is injured by them should contact a personal injury attorney as soon as possible. The personal injury attorney will need to have as much information as possible about the incident as well as the patient’ medical condition. The physician who issued the medical marijuana prescription will be an important resource in developing the case, in part because the patient may need to establish a “base line” against which the effects of the improperly dispensed product can be compared.

The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases for over 45 years. If you have been injured as a consequence of negligent actions by a marijuana dispensary, call us today for a free, confidential attorney consultation. We’re available at 702-388-4476 or contact us through our website.

Employer Responsibilities for Air Quality

Air pollution at work can cause serious health problems, and can aggravate conditions like asthma. For employers, maintaining good air quality in the workplace helps to keep employees healthy and safe, and improves productivity.

OSHA and indoor air quality

The general duty clause of the federal Occupational Safety and Health Act of 1970 (OSHA Act) requires employers to keep their workplaces free from recognized hazards that are causing or are likely to cause death or serious physical harm” to their employees. 29 U.S.C. 654. Although the regulations under the OSHA Act and Nevada’s own OSHA law, NRS 618 et seq., do not address indoor air quality in general, specific standards have been adopted, including:

In addition to the specific standards, the Occupational Safety and Health Administration provides nonbinding guidance for employers who operate commercial and institutional buildings.

For employees working in places that do not fall within one of the specific standards, the OSHA Act’s general duty clause offers an umbrella protection against inadequate ventilation or other unhealthy air quality problems. For example, a restaurant that fails to maintain adequate vent hoods and exposes its workers to constant oven smoke might be violating OSHA standards, among other things.

The Safety Consultation and Training Section (SCATS) of the Nevada Division of Industrial Relations offers air quality evaluations by qualified industrial hygienists in the Las Vegas area.

Smoking and the Nevada Clean Indoor Air Act

The Nevada Clean Indoor Air Act, NRS 202.2483, regulates where smoking of tobacco is permitted in places of employment. The law prohibits smoking in most publicly accessible businesses, including indoor areas at restaurants, shops, schools, and government buildings. It also requires employers to post “No Smoking” signs and take steps to stop prohibited smoking. The Clean Indoor Air Act permits smoking in casinos, outdoor areas of restaurants, and other venues, so while it limits employee exposure to tobacco smoke to a large degree, it leaves many Las Vegas employees exposed to second-hand smoke.

Smoking marijuana in public is still illegal

Public consumption of marijuana, the recreational use of which has been legal in Nevada since January 2017, continues to be illegal. Unlike the Clean Indoor Air Act’s exceptions for tobacco smoking, Nevada’s recreational marijuana law makes no exceptions. Smoking marijuana in a public place, which is defined simply as “an area to which the public is invited or in which the public is permitted regardless of age,” is a misdemeanor. NRS 453D.030(17), NRS 453D.400(2).

GGRM helps Las Vegas workers protect their rights

Workers who are concerned that their employers are not taking adequate care to prevent air quality problems have a range of options for addressing the problem. State and federal agencies provide complaint mechanisms, and in some situations a workers’ compensation claim or even a personal injury lawsuit may be appropriate. The law firm of Greenman Goldberg Raby Martinez works with employees in the Las Vegas area to get compensation for injuries caused by problems like bad workplace air quality. For a free consultation call us today at 702-388-4476, or send us a request through our site.

Recreational Marijuana and Workers’ Comp in Nevada

Recreational Marijuana and Workers' Comp in Nevada

In January 2017 Nevada joined a handful of other states in decriminalizing recreational marijuana use. NRS 453D.010 et seq. Legalization has raised a number of interesting employment-related legal questions. Workers who use marijuana recreationally should take time to understand how marijuana use interacts with workers’ compensation coverage.

Decriminalization of marijuana left other prohibitions in place

Perhaps the most important thing to bear in mind about Nevada’s recreational use statute is that it only eliminated certain criminal penalties for possession and use of marijuana. It does not require employers to no longer test employees for marijuana use. Nor does it change the way workers’ compensation insurers use evidence of drug use to deny claims.

Nevada’s workers’ compensation statute provides that an insurer can deny a workers’ compensation claim if the injury “occurred while the employee was under the influence of a controlled or prohibited substance.” NRS616C.230(1)(d). The test to determine if an employee was “under the influence” of marijuana is the same as the test used to determine liability under DUI laws: 10 or more nanograms per milliliter in a urine sample, or 2 or more nanograms per milliliter in a blood sample. NRS 484C.110. The law provides an exception for workers who have lawful prescriptions for medical marijuana.

As decriminalization matures it will be interesting to see how insurers go about proving that a worker was under the influence of marijuana. Unlike drivers, who are deemed to provide implied consent for a blood test to determine intoxication during a traffic stop, an injured worker might not have a blood or urine sample taken. On the other hand, an insurer might use information from a manager or other employees to infer that the employee had recently used marijuana at the time of the injury.

Overcoming a denied claim

An employee whose claim is denied can overcome the denial only by showing clear and convincing evidence that being under the influence of marijuana was not the proximate cause of the injury.

Nevada’s “clear and convincing” evidence standard calls for proof showing that the claim is highly likely to be true. In technical terms, clear-and-convincing is a higher standard than the “preponderance of the evidence” standard applied to many questions of proof in civil lawsuits. Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 1260 (1998). The preponderance test only asks whether evidence for one proposition outweighs the evidence for the arguments against it. “Clear and convincing” requires something more, which can be a difficult standard to meet depending on the facts and the kinds of evidence available.

The proximate cause test asks if the worker’s injury would not have taken place but for the marijuana use. Each case will require a careful legal analysis to determine if this connection can be broken through clear and convincing evidence. Some cases will be easier than others. For example, if a worker is injured by an object that falls from above, the fact that the worker had smoked marijuana the night before might not be a proximate cause of the injury. On the other hand, if the worker smoked marijuana in the morning and stumbled into a ditch, the worker may have difficulty showing that the drug’s influence didn’t lead to the fall.

Contact GGRM to discuss your options

The intersection of workers’ compensation law and recreational marijuana involves tricky issues that need expert analysis. If you have had a workers’ compensation claim denied because of recreational marijuana use, you may have legal options available to you. The attorneys at GGRM have helped workers’ compensation clients in the Las Vegas area for over 45 years. For a free attorney consultation call us at 702-388-4476, or request a call through our website.