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Medical marijuana and retail customers stand in line to check out at the+source dispensary in Henderson on Thursday, November 9, 2017. (Jeff Scheid/The Nevada Independent)

A nurse who was fired from his job at Sunrise Hospital in Las Vegas last year after marijuana was found in his system has won a preliminary victory in his wrongful termination case, which will test whether Nevada employment law keeps pace with increasing public acceptance of cannabis.

In an order filed Tuesday, Clark County District Court Judge Mark Bailus rejected the hospital’s motion to dismiss former employee Scott Nellis’ lawsuit on all but one of five counts. Hospital officials defended their position.

“Backed by our mission to surround our patients with caregivers who are dedicated to healing above all else, we strongly believe we acted appropriately and we are prepared to vigorously defend ourselves in this case,” said Sunrise spokeswoman Fran Jacques.

Nellis’ lawyer said he hopes to take it to a jury trial and the Supreme Court to set precedent.

“This is a fight that I’ve been looking forward to for quite some time. It’s amazing. It’s a new civil right of the 21st century,” said attorney Christian Gabroy.

Nellis was hired at Sunrise in 2009 and ended up working in the behavioral health unit. According to his lawsuit, he was attacked by a patient in 2013 and fractured a vertebrae, which led to him applying for and receiving a medical marijuana card.

In February 2017, Nellis was again attacked by a patient and treated for injuries at an emergency room, where he was asked to provide a urine sample. After the sample tested positive for marijuana, the hospital told him in early March that he was suspected of working while impaired in violation of company policy.

Nellis argued that marijuana shows up in tests as long as a month after the substance is ingested and maintains that he was not under the influence while working.

“I was unaware that I had, and do not believe, I did anything wrong,” Nellis wrote on a disciplinary form ahead of his firing.

His lawsuit argues the termination was a violation of Nevada’s medical marijuana law and the Legislature’s direction that employers make reasonable accommodations for marijuana cardholders. It also alleges the hospital was negligent in hiring and training and discriminated against someone lawfully using marijuana — a claim that, if upheld by the courts, could have major implications for recreational marijuana users.

Bailus ruled those claims could proceed, but dismissed a claim that the hospital engaged in deceptive trade practices in the case. Nellis is suing for damages, lost compensation and attorney’s fees and costs.

The case highlights a policy question that came up in the legislative session: What rights do employers have to ban their employees from using marijuana legally? It also underscores a conundrum in the cannabis realm — that the tests used to detect the marijuana active ingredient THC are not a good gauge of impairment in the same way that blood alcohol level can gauge drunken driving.

“My whole goal here is that any employee who is ever terminated for a positive THC finding is going to get the justice they deserve in the courtroom,” Gabroy said. “Our voters, our electorate approved this stuff. We’ve done it in the constitution, we’ve done it at the ballot, and that should not be taken out of context to cause someone financial devastation in a wrongful termination.”

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