Court Rules Off-Duty Recreational Cannabis Use Not Protected By Nevada State Law

In a decision last week, the Nevada Supreme Court ruled that the state law protecting “lawful activities” or “lawful off-duty conduct” does not apply to non-medical cannabis consumption, according to an Ogletree Deakins report. In the decision in Ceballos v. NP Palace, LLC, the court said adult cannabis use was not “lawful” behavior outside of work because, although legal in Nevada, cannabis is listed as a Schedule I narcotic and illegal under the federal Controlled Substances Act, the report says.

The lawsuit was filed by Danny Ceballos after he was fired from his table dealer job at Las Vegas Station Hotel & Casino. Ceballos, who was fired after he failed a post-workplace injury drug test, said he was not impaired at the time of the injury and had not used cannabis in the 24 hours prior to the accident. He filed the lawsuit under Nevada’s “lawful off-duty conduct” law and for wrongful termination, the report says.

Nevada law says an employer cannot terminate someone “because the employee engages in the lawful use in [Nevada] 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.”

The court dismissed the case saying the Nevada protections only applied to activities “lawful under both state and federal law, not just lawful under Nevada law,” according to the report.

The decision also cited a 2015 Colorado case, Coats v. Dish Network, LLC, that said similarly adult cannabis use was not “lawful” outside of work due to its designation as a Schedule I narcotic. It threw out the wrongful termination portion of the suit on the grounds the employer did not “violate(s) strong and compelling public policy.” The court ruled that the case lacked a “public dimension” like worker compensation, on-the-job injuries, or public services, such as jury duty or whistle-blowing.

The court concluded in a possible call-out to the state legislature, saying if the Nevada legislature “meant to require employers to accommodate employees using recreational marijuana outside the workplace but who thereafter test positive at work, it would have done so.”