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by Attorney Frank T. George

Ohio’s Cannabis Legalization: What it Means for City Employees and Workplace Policies

With the recent legalization of cannabis, employees may reasonably assume that—because recreational use is now legal—there will no longer be workplace consequences for its consumption. However, that assumption is not perfectly accurate. Employers, including the City of Cleveland, are entitled to continue drug testing their employees for cannabis, even though consumption is not in violation of state criminal law. 

• As a City of Cleveland employee, can I still be tested?

In short, yes. Even with Ohio’s recent cannabis legalization, the city still retains the right to test its employees. When issuing the bill that legalized cannabis, the Ohio legislature enacted a statute that specifically gives employers the option to regulate their employees’ consumption. As of writing this newsletter article, the city has not published a change to its existing human resources policy, and it still reserves the right to impose discipline on employees who test positive on a drug screen.

• What employees are subjected to testing?

City employees should understand that they may be subjected to random drug testing throughout their employment. The City’s Human Resources Policy states that employees designated as “safety-sensitive” are required to be randomly tested. Additionally, the City’s policies also appear to permit random testing even for employees who are not designated as “safety sensitive.” Therefore, all employees should be cognizant of the fact that they may face workplace drug testing.

• Consumption of cannabis even outside of work can have adverse effects.

Cannabis stays in one’s system for extended periods of time depending on the amount of consumption. Research generally shows that cannabis can be detected: 

• In blood for up to 12 hours;
• In urine for 3-30 days, depending on usage; and
• In hair follicles for up to 90 days, no matter the usage. 

The city's Human Resources Policy states that the city has the right to test its employees using any of the methods described above. This could impose a difficult dilemma for employees who use cannabis outside of work hours: they may otherwise be cannabis-free during the workday, but nonetheless fail a drug test. Additionally, if an employee gets into an accident while at work, the employee may be required (depending on the circumstances) to take a drug test. Given the research noted above, that test may come up positive for marijuana even if the employee was not under the influence at the time of the accident.  

• What happens if I do not pass a test?

It is impossible to know with certainty how the city will respond to a failed drug test. The City Human Resources Policy does, however, contemplate several possible consequences depending upon various circumstances. A violation of the City’s drug usage policy could, for example, result in discipline, separation, or participation in an Employee Assistance Program. 

• Okay, so I may face discipline for recreational use. What if I have a medical license?

Even if an employee has a medical license for cannabis, the employee is not necessarily protected against workplace consequences. Although employers are not permitted to discriminate against employees because of a disability, Ohio law creates an exception related to medical marijuana usage: “It is not a violation of [Ohio’s anti-discrimination law] if an employer discharges, refuses to hire, or otherwise discriminates against a person because of that person’s use of medical marijuana if the person’s use…is in violation of the employer’s drug-free workplace policy…” (See, ORC Section 3796.28(C)).

Moving forward, it is important for employees to be cognizant of the city's policies. Those policies do not make it completely clear how often, when, and even if certain employees will be drug tested. So, when in doubt, pass instead of puff. 

Please note that this article does not constitute legal advice and does not anticipate all legal questions that may arise in the workplace. Employees are advised to seek legal counsel if/when they develop specific legal concerns.