According to a 2019 national survey, 49.2% of surveyed American adults say they have used marijuana. Does this mean almost half the adult population is precluded from federal employment? The short answer: no—and recent guidance from the Acting Director of the U.S. Office of Personnel Management (“OPM”) sheds additional light on the Government’s evolving position on past marijuana use within its ranks.
On February 25, 2021, Acting Director Kathleen M. McGettigan issued a memorandum providing updated guidance on federal agencies’ consideration of how an individual’s marijuana use “may or may not adversely affect the integrity or efficiency of the Government and thereby impact their suitability or fitness for a position.”
When an agency is required to determine whether an individual is suitable for federal employment, that decision is based upon the presence or absence of factors set forth in 5 C.F.R. § 731.202(b). Two of these factors – (1) illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and (2) criminal or dishonest conduct – are implicated if an applicant has used or possessed (or currently uses or possesses) marijuana.
OPM’s suitability regulations, however, prohibit agencies from automatically finding individuals unsuitable for federal employment based on either of those factors. See § 731.201. Rather, the regulations require that the individual’s conduct be evaluated on a case-by-case basis to determine the impact, if any, of that conduct on the integrity and efficiency of the Government. To this end, in each case, the agency must consider the following additional considerations if they apply:
- 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;
- any contributing societal conditions; and
- the absence or presence of rehabilitation or efforts toward rehabilitation.
731.201(c). Because each case turns on the existence of a nexus (i.e., a connection) between the conduct and the integrity or efficiency of the service, prior marijuana use (even recent use) is not automatically disqualifying:
[I]t would be inconsistent with suitability regulations to implement a policy of finding an individual unfit or unsuitable for federal service solely on the basis of recency of marijuana use. Past marijuana use, including recently discontinued marijuana use, should be viewed differently from ongoing marijuana use.
In fact, even if a person has a criminal history of marijuana possession, agencies cannot find that person unsuitable unless such conduct would adversely impact “the integrity or . . . efficiency of the service.” 5 C.F.R. § 731.201.
It should be noted, however, that federal employees remain subject to Executive Order 12564, Drug-Free Federal Workplace, which requires federal employees to refrain from using illegal drugs and recognizes that persons who currently use illegal drugs are not suitable for federal employment.
Although OPM’s recent guidance represents a flexible approach to the government’s consideration of marijuana use or possession in its capacity as an employer, federal law on marijuana remains unchanged: marijuana remains a controlled substance under Schedule I of the Controlled Substance Act. State and local efforts to decriminalize marijuana use (for medical or recreational use) do not alter federal law or Executive Branch policies regarding a drug-free workplace. (During his confirmation hearings, U.S. Attorney General Merrick Garland indicated the U.S. Department of Justice might not pursue federal criminal charges for marijuana use in states that had decriminalized such use.) Thus, until Congress changes the law regarding marijuana use or possession, employees and applicants will be well-advised to discontinue such use should they hope to occupy a federal position of trust.
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