Nadine Roddy—Senior Attorney, National Legal Research Group
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. The court held that it did not, pointing out that although Nevada had decriminalized adult recreational marijuana use, the drug continued to be illegal under federal law. Thus, its use was not “lawful . . . in this state,” and it could not support a private right of action under the statute.
In reaching this conclusion, the court cited a treatise by Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012), for the canon of statutory interpretation that “general terms are to be given their general meaning.” The court acknowledged the discharged employee’s argument that because the off-duty conduct statute was enacted decades before Nevada decriminalized recreational marijuana use, its drafters could not have foreseen the state-federal split that exists today. Thus, the court should infer an exception for federal illegality by reading “lawful . . . in this state” to mean “lawful under state law.” But the court believed that such an interpretation would run directly contrary to the general-terms cannon, which holds that “the presumed point of using general words is to produce general coverage—not to leave room for courts to recognize ad hoc exceptions.” Ceballos, 514 P.3d at 1077 (quoting Scalia & Garner, supra, Reading Law).
Additionally, the court held that because the adult recreational-use statute authorizes employers to prohibit or restrict such use by their employees, an employee discharged after testing positive at work based on recreational marijuana use does not have a common-law tortious discharge claim. The employee argued that his termination offended public policy in two ways: (1) it violated the policy of protecting his right under the recreational-use statute to engage in marijuana consumption pursuant to the statute’s guidelines; and (2) it contravened the state’s policy interest in ensuring its citizens were not denied the ability to support themselves and their families due to engaging in “statutorily protected and completely lawful activities.” Id. at 1078. In the court’s view, neither of these policies rose to the level required to establish a tortious discharge claim arising out of a presumptively at-will employment relationship. In Nevada, tortious discharge actions are “severely limited” to those “rare and exceptional” cases where the employer’s conduct violates “strong and compelling” public policy. Id. (quoting Sands Regent v. Valgardson, 777 P.2d 898, 900 (Nev. 1989)).
Further, the interplay between adult recreational marijuana use and employment law had already been addressed by the legislature. The recreational-use statute specifically authorized employers to adopt and enforce workplace policies prohibiting or restricting such use. If the legislature meant to require employers to accommodate employees using recreational marijuana outside the workplace but thereafter testing positive at work, it would have done so. The court declared that when the legislature has enacted statutes addressing the same subject matter at issue in a case, the court does not intrude on the legislature’s prerogative. The trial court’s dismissal of the lawsuit was affirmed. Contra Palmiter v. Commonwealth Health Sys., Inc., 2021 PA Super 159, 260 A.3d 967 (medical marijuana statute impliedly provides a private right of action against an employer by an employee who experiences adverse employment action solely on account of using prescribed medical marijuana; employee also has tort claim for wrongful discharge in violation of public policy).