NV Supreme Court decides case on positive employee drug tests

by Jordan Faux

The Nevada Supreme Court held last year that an employer is not required to accommodate an employee’s use of recreational marijuana even if that use occurs outside of work and the employee is not under the influence at work.

In Ceballos v. NP Palace, LLC, 138 Nev. Adv. Op. 58 (Nev. 2022), the employee 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 one day, he slipped and fell in the employee breakroom. The employer’s security responded, first assisting the employee, then requiring him to submit to a drug test. The test came back positive for marijuana and the employee was terminated based on the positive test result.

The employee asserted he was not intoxicated or impaired during his; did not use marijuana in the 24 hours before that shift; did not use marijuana at work, and that his use complied with recreational marijuana statutes. The employee asserted claims under NRS 613.333 which creates a private right of action in favor of an employee who is discharged from employment for engaging in “the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours.”

The Nevada Supreme Court held that adult recreational marijuana use is not protected by this Nevada law because marijuana is still unlawful in the State of Nevada under Federal laws. Therefore, the employer had the right to terminate the employee for a positive drug test. However, don’t forget that there are certain circumstances where an employee’s use of marijuana outside of work is protected by state law.

Specifically, Nev. Rev. Stat. § 678C.850 states that if the marijuana use is for medical purposes and not recreational, the employee’s right to use is protected unless it would pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or prohibit the employee from fulfilling any and all of his or her job responsibilities.

What this means for you is that a positive test for marijuana does not necessarily give an employer the right to terminate an employee. Further inquiry may be required. Of course, if a situation like this does arise, it’s always wise to consult with an attorney as the specifics of each instance may matter.