Summary
The Nevada Supreme Court held that adult recreational marijuana use is not "lawful use in this state" under NRS 613.333 because marijuana possession remains illegal under federal law. The court also held that Nevada's statutory authorization for employers to prohibit or restrict recreational marijuana use foreclosed a common-law tortious discharge claim based on termination following a positive workplace drug test. The court affirmed dismissal of the employee's complaint.
Topics
Practice areas
Questions Presented
- Whether recreational marijuana use that is lawful under Nevada law but illegal under federal law constitutes use that is lawful in Nevada under NRS 613.333(1)(b), thereby supporting a private action for discharge.
- Whether an employee discharged after testing positive for marijuana following lawful recreational use may pursue a common-law tortious-discharge claim based on Nevada public policy.
Holdings
- The phrase lawful use in this state under NRS 613.333(1)(b) encompasses compliance with applicable state and federal law. Because federal law criminalizes marijuana possession, recreational marijuana use is not lawful in this state for purposes of the statute, even when the use complies with Nevada law. The alleged marijuana use therefore did not support a statutory wrongful-discharge claim.
- An employee discharged after testing positive for recreational marijuana use may not pursue a common-law tortious-discharge claim on the asserted public-policy theories where the use is authorized under Nevada marijuana law but the employer is expressly authorized to prohibit or restrict it. Recreational marijuana use does not implicate the strong and compelling public policy required for a tortious-discharge claim.
Key quotations
“Because federal law criminalizes the possession of marijuana in Nevada, its use is not “lawful .. . in this state” and does not support a private right of action under NRS 613.333.” (1)
“Further, because NRS 678D.510(1)(a) authorizes employers to prohibit or restrict recreational marijuana use by employees, an employee discharged after testing positive at work based on recreational marijuana use does not have a common-law tortious discharge claim.” (1)
“Nothing in the language of the statute limits the term “lawful” to state law.” (5)
“If the 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.” (11)
Factual background
Danny Ceballos worked as a table-games dealer at Palace Station and had no reported performance or disciplinary problems. After he slipped and fell in an employee breakroom near the end of his shift on June 25, 2020, Palace Station required him to take a drug test, which was positive for marijuana. Ceballos alleged that he was not intoxicated or impaired, had not used marijuana during the preceding 24 hours, and had used marijuana at home in compliance with Nevada recreational-marijuana laws. Palace Station terminated him on July 16, 2020, based on the positive test.
Procedural history
Ceballos sued Palace Station after it terminated him following a positive marijuana test administered after an on-the-job fall. The Eighth Judicial District Court dismissed the complaint under NRCP 12(b)(5). The Nevada Supreme Court affirmed.