Alert! Nevada Supreme Court Rules That Employer Lawfully Discharged Employee For Recreational Marijuana Use

Volume: 21 | Issue: 37
August 16, 2022

The Nevada Supreme Court has issued an important ruling for Nevada employers who engage in drug testing. The Court determined that Nevada’s lawful use law does not apply to off duty recreational marijuana use because marijuana is still illegal under federal law.

In this case, the Palace Station discharged a dealer following a positive post-accident drug test. The employee filed a lawsuit. He contended that he was not intoxicated, had not used marijuana in the 24 hours before his shift, and that he was at home, not at work, when he engaged in the recreational marijuana use that produced his positive drug test result.

The employee argued that his discharge violated Nevada’s lawful use statute, Nevada Revised Statute 613.333. This law prohibits an employer from discriminating against an employee because the employee “engages in the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.” It is often applied to alcohol and tobacco products but has not yet been applied to marijuana.

The Nevada Supreme Court rejected the employee’s argument that recreational marijuana qualifies as a lawful product under the lawful use statute. While recreational marijuana is lawful in Nevada, it is illegal under federal law. Therefore, the employee’s use of marijuana is not protected by the lawful use statute, and the employer could lawfully discharge him for the positive post-accident test result.

The Court’s decision and its discussion of the interplay between Nevada’s marijuana laws and employment laws answers an important question and gives employers engaged in drug testing the following current parameters:        

  • Nevada employers can engage in drug testing and can check for the presence of marijuana.
  • Nevada employers cannot fail or refuse to hire a prospective employee because of a pre-hire drug test result that is positive for marijuana unless the prospective employee is applying for a position exempted by NRS 613.132.
  • Sometimes a positive drug test result will require an accommodation under Nevada’s medical marijuana statute as set forth in NRS 678C.850.
  • If the employee is engaged in recreational use, however, a positive probable cause (post-accident or reasonable suspicion) drug test result for marijuana can result in discharge.

The Court’s decision is very welcome news for employers because it provides clarity to a major area of employment law and reinforces an employer’s legitimate interests in drug testing. Employers should keep an eye on the next legislative session as it is always possible that a special interest group will advocate for a change in the law to counter this decision.

KZA attorneys are available to answer any questions you have about this case or drug testing. 

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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