Nevada Supreme Court Upholds Ruling Finding “Off-Duty Conduct” Law Does Not Protect Recreational Cannabis Use

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Nevada Supreme Court Upholds Ruling Finding Off-Duty Conduct Law Does Not Protect Recreational Cannabis Use
November 14, 2022

The Nevada Supreme Court has offered employers significant clarification on the state’s employment protections for recreational marijuana users. A recent case before the court upheld a ruling that an employer could dismiss an employee due to testing positive for marijuana after a positive post-accident drug test.

In its decision, the Nevada Supreme Court upheld the dismissal of an employee’s lawsuit. In this suit, the employee claimed he fell under the protected status as a recreational cannabis user but faced dismissal regardless due to a positive test. Allegedly, he used recreational marijuana off-duty; thus, he expected protection under Nevada’s lawful off-duty conduct law. However, the employer claimed he used recreational marijuana at home and did not suffer from intoxication or impairment while in the workplace. As such, he complied with state law.

The plaintiff, employed as a table games dealer for over a year, never faced disciplinary actions during his tenure. However, when the plaintiff slipped and fell in an employee breakroom, the employee was required to undergo a drug test that returned positive for the use of cannabis. This result led to the plaintiff’s termination.

The plaintiff filed a lawsuit alleging a violation of NRS 613.333(1), also known as the state’s “Off-Duty Conduct” law. This law makes it unlawful for employers to discharge an employee for “the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours.”

Nevada legalized the recreational use of cannabis in 2017. Therefore, the plaintiff argued that the employer could not legally terminate him for using the substance outside working hours. However, the district court ruled against the employee, dismissing the claim because cannabis use remains federally illegal.

Nevada’s Supreme Court, reviewing the case, upheld the lower court’s ruling. The phrase “lawful use in this state” holds a significantly different meaning than “under state law.” By choosing to use the former, the court found that the legislature intended to distinguish “lawful activity” from solely encompassing state laws and instead to consider federal law as well.

The Supreme Court reasoned that if the legislature had intended to create a carve-out regarding cannabis use, it would have done so when it legalized recreational cannabis in 2017. Instead, the legislature chose to preserve employers’ right to enforce workplace policies regarding even off-duty cannabis use.

As a result, the court affirmed the dismissal. For now, employers may still enforce policies prohibiting the recreational use of cannabis. However, this may not be the case should marijuana’s status change under federal law.

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