Civil Service Referee Upholds Firefighter’s CBD-Based Termination

Written on 07/09/2021
Will Aitchison

Gerardo Colon became a Cleveland firefighter on October 9, 2000. Over his career, Colon suffered three consequential injuries on the job to his neck, back, shoulder and knee that have caused ongoing pain. In 2017, Colon tested positive for marijuana, and admitted to smoking marijuana prior to the test to help him sleep.

In lieu of termination, Colon signed a last chance agreement on October 3, 2017. The agreement had a term of two years.

On July 10, 2019, Colon was sent for a random drug and alcohol test. The test was positive for a marijuana metabolite. When a confirming test was positive for THC, the City terminated Colon. Colon appealed to the City’s Civil Service Commission.

Colon denied having smoked or otherwise taken marijuana since the 2017 test and explained that the positive results were the result of his having used CBD oil to relieve pain. However, a referee appointed by the Commission noted that according to the City’s Medical Review Officer (MRO), only marijuana would produce the positive reading for THC as CBD is chemically different. The MRO testified that Colon’s confirmatory drug test produced marijuana metabolite results above 15 ng/mL, which is the cut-off mandated by Department of Transportation regulations.

The referee held that “the MRO may not consider explanations for a positive test where the explanation, even if true, does not constitute a legitimate medical explanation, nor where a physician recommended the use of a Schedule 1 drug pursuant to state law, nor where the explanation is that the result is from the user having ingested something unknowing it contained a banned substance.

“Colon’s explanation that the positive test is the result of his having used CBD oil is credible. His work history is admirable. His character witnesses where outstanding. His separation from the Division of Fire is a loss to the City.

“Unfortunately, as long as the federal government classifies marijuana a Schedule 1 drug, with no recognized medical use, there is no alternative but to conclude there is no relief for Colon in this proceeding. The procedures followed were in accord with the law, the City’s policies and with the Union contract. I recommend the termination of employment for the reasons stated above.”

City of Cleveland (Colon), December 23, 2020.

Note: The DOT’s February 18, 2020 “CBD Notice” states “It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”

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