Fedweek

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A House-passed bill (HR-3617) to decriminalize the use of marijuana at the federal level would address an issue that has arisen as increasing numbers of states have passed laws that conflict with policies applying in the federal employment context.

The bill, which now goes to the Senate, would remove marijuana from the list of scheduled substances under the Controlled Substances Act and eliminate criminal penalties for an individual who manufactures, distributes, or possesses cannabis. Sponsors say that 37 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands have adopted laws allowing legal access to cannabis, and 15 states, the District of Columbia, the Commonwealth of the Northern Mariana Islands, and Guam have adopted laws legalizing cannabis for adult recreational use.

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However, even as those state laws have changed, marijuana has continued to be categorized as a controlled substance under the federal Controlled Substances Act, which for federal employment purposes overrides those state laws. Under OPM regulations, agencies are to decide whether individuals—both prospective and current federal employees—are “suitable” for federal employment based on a list of factors, including several that could be implicated by use or possession of marijuana.

OPM last year told agencies not to automatically deem the use or possession of marijuana as disqualifying. Instead, it told them to consider factors such as the recency of the use, the age of the person at the time and commitment to not use it again.

However, that memo added that those considerations do not apply to determinations of eligibility for access to classified information or for employment in sensitive national security position, since the Office of the Director of National Intelligence is responsible for policy in those areas.

That office’s most recent guidance, dating to 2014, stresses that federal law prevails over any state law allowing possession and use of certain drugs, such as marijuana, that are considered controlled substances for federal law purposes, including the potential for denying a security clearance to a prospective employee or revoking one from a current employee.

The House bill contains this brief reference without explanation: “Federal agencies may not use past or present cannabis or marijuana use as criteria for granting, denying, or rescinding a security clearance.”

It does not directly address suitability determinations but states broadly that “no discrimination in the provision of a federal public benefit on the basis of cannabis.”

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