Fedweek

OPM has told agencies not to “automatically” deem the use or possession of marijuana as disqualifying someone from federal employment under job suitability grounds, a policy that it said applies both to job applicants and incumbents.

A memo notes that “fifteen states and the District of Columbia have removed criminal prohibitions on medical and recreational marijuana use by adults age 21 or older, and an additional 33 states permit medical use of marijuana or of the cannabis-derived compound cannabidiol (CBD).”

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However, it adds that marijuana “continues to be categorized as a controlled substance under Schedule I of the Controlled Substances Act (CSA); federal law on marijuana remains unchanged.”

Also still in effect, it noted, is the Drug-Free Federal Workplace executive order which specifies that federal employees are required to refrain from the use of illegal drugs; the use of illegal drugs by federal employees, whether on or off duty, is contrary to the efficiency of the service; and that persons who currently use illegal drugs are not suitable for federal employment.

Under OPM regulations, agencies are to make suitability determinations based on a list of factors, including several that it said “could be implicated” by use or possession of marijuana: illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and criminal or dishonest conduct.

But it says those rules “do not permit agencies to automatically find individuals unsuitable for federal employment based on either factor. Rather, when agencies consider the suitability or fitness of an applicant or appointee for a position, the individual’s conduct must be evaluated on a case-by-case basis to determine the impact, if any, to the integrity and the efficiency of the government.”

A 2015 memo similarly had said that decisions must be made case-by-case, but the new memo provides a longer list of what agencies are to consider. They are: the nature of the position for which the person is applying or in which the person is employed; the nature and seriousness of the conduct; the circumstances surrounding the conduct; the recency of the conduct; the age of the person at the time of the conduct; contributing societal conditions; and the absence or presence of rehabilitation or efforts toward rehabilitation.

The new memo also goes into more detail regarding what qualifies as “efforts toward rehabilitation” that work in the individual’s favor, which can include treatment, counseling or “a commitment to not use marijuana going forward.”

It adds: “Heads of agencies are expected to continue advising their workforce that legislative changes by some states and the District of Columbia do not alter federal law or executive branch policies regarding a drug-free workplace. An individual’s disregard of federal law pertaining to marijuana while employed by the Federal government remains relevant and may lead to disciplinary action.”

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