Over the last two decades, over two-thirds of the states have enacted legislation authorizing the use of marijuana and marijuana products for medical purposes by persons with debilitating conditions. See, e.g., Va. Code Ann. § 18.2-251.1. At present, over one-third of the states have also decriminalized possession of small amounts of marijuana and marijuana products for recreational (“adult”) use by persons 21 years of age and older. See, e.g., Conn. Gen. Stat. § 21a-279a. Unsurprisingly, such laws have created difficulties for employers wishing to prevent their employees from bringing marijuana into the workplace and/or performing work while under its influence. Employers’ drug-use policies have been challenged in the courts by aggrieved employees on the basis of such laws, with mixed results.
Recently, the Nevada Supreme Court, sitting en banc, decided the case of Ceballos v. NP Palace, LLC, 514 P.3d 1074 (Nev. 2022), involving the state’s off-duty conduct statute, which creates a private right of action in favor of an employee who is discharged for engaging in “the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours[.]” Nev. Rev. Stat. § 613.333(1)(b). The question presented was whether “adult recreational marijuana use” qualified for protection under this statute.Read More