Nevada SC Rules “state law protecting “lawful activities” or “lawful off-duty conduct” does not apply to non-medical cannabis consumption”

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.


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Ganjapreneur report

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.

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

The Nevada Supreme Court on Thursday rejected the argument that, since using pot is not a criminal offense in Nevada, bosses can’t legally fire a worker for marijuana use when not at work.

Danny Ceballos filed suit after he was terminated as a dealer at Palace Station.

According to the unanimous opinion, he tested positive for marijuana after arriving for work because he had used the drug at home the night before. He cited state statute creating a “private right of action” for employees who are fired for the lawful use of any product outside the premises of their workplace when off duty.

The justices agreed with the district court decision that marijuana use doesn’t qualify for that protection because even though adult recreational use is not a crime in Nevada, it remains unlawful because another statute allows employers to prohibit the use of pot by employees and the drug remains illegal at the federal level.
Ceballos was tested after he slipped and fell in the employee break room and he was terminated.

The opinion by Justice Kris Pickering also rules that while recreational marijuana use was decriminalized by the Legislature and governor, it remains illegal. Recreational pot was decriminalized by a voter initiative effective Jan. 1, 2017. That initiative stated that adult recreational marijuana use is “exempt from state prosecution.”

But justices ruled that doesn’t make it lawful. They ruled that state laws cannot completely legalize marijuana use because the drug remains illegal under federal law which must be followed in Nevada. They quoted a similar case in Colorado that stated that nothing in the statute limits the term “lawful” to state law.

Therefore, Ceballos’s use of marijuana isn’t protected by the Nevada statute and Palace Station had the legal power to fire him for violating company policy



Nevada High Court Rules Recreational Marijuana Is Not ‘Lawful Off-Duty Conduct’

August 17, 2022

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