In Nevada, employees terminated for off-duty use of marijuana do not have a right of action under NRS 613.333, which creates a private right of action for an employee who is discharged for engaging in the “lawful use” of products while off the clock and off the employer’s premises. This is because, while state law may make marijuana or cannabis use lawful, courts will not narrowly interpret statutory language of “lawful use” to mean “lawful under state law even if illegal under federal law.” Colorado’s Supreme Court previously reached a similar decision, and we expect that jurisprudence in other states may follow suit in the absence of clear state legislation or change in federal law.

Earlier this month, the Nevada Supreme Court ruled that an employee’s off-duty use of recreational marijuana, which is lawful under Nevada law, is not protected under a law that prohibits employers from discharging employees from the off-duty use of lawful products, because marijuana is illegal under federal law. Ceballos v. NP Palace, LLC d/b/a Palace Station Hotel & Casino, No. 82791 (Aug. 11, 2022).

Danny Ceballos worked as a table games dealer at Palace Station for more than a year, with no performance or disciplinary issues. But toward the end of his shift on June 25, 2020, he slipped and fell in the employee breakroom. Palace Station security responded, first assisting Ceballos, then requiring him to submit to a drug test. The test came back positive for marijuana, and on July 16,...

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