In a recent decision, the Nevada Supreme Court determined Nevada’s “lawful use” statute did not extend to adult recreational marijuana use given marijuana remains illegal under federal law.
The Case
The case began when an employee slipped and fell in the employee breakroom. Following this accident, the employer required him to submit to a drug test, which came back positive for marijuana. This led to the employee’s termination. As alleged in the complaint, the employee was not intoxicated at the time of the accident, had not used marijuana in the 24 hours prior to the shift, did not use marijuana at work, and had complied with Nevada’s recreational marijuana laws.
The Suit
Following the termination, the now-former employee filed suit, alleging the employer violated Nevada’s lawful use statute, which makes it an unlawful employment practice for an employer to discharge an employee for that employee’s engagement in the lawful use of any product outside the workplace and working hours.
The Findings
The Supreme Court determined Nevada’s lawful use statute protected activity that’s lawful under both state and federal law—not just state law. 1
The Supreme Court also disagreed with the plaintiff’s argument that Nevada’s law, regulating pre-employment marijuana drug tests, should support his position that his marijuana use be considered lawful. Instead, the Court found that this Nevada law would have been moot if the already existing lawful use statute protected marijuana use.
Further, the Supreme Court cited to another Nevada law that allows employers to enforce workplace drug policies, which includes regulating recreational marijuana use in the workplace.
Our Reflections
Employers are encouraged to discuss this recent decision with their legal counsel especially since it does not impact the potential requirement to accommodate medical marijuana use.
1 The Supreme Court also cited to a 2015 Colorado Supreme Court decision, Coats v. Dish Network, which also found an employee’s termination due to marijuana use lawful despite Colorado’s similar lawful use statute.