Country-wide adoption of recreational marijuana laws has some people wondering if the mandatory drug test prior to employment is a thing of the past. Unfortunately, without federal legislation on the issue, the answer is likely yes for anyone seeking employment in the federal government sector. Federal laws continue to classify marijuana as an illegal Schedule 1 drug, putting it in the same category as heroin, ecstasy, and LSD. Despite widespread approval for the plant and state regulations allowing its recreational use, those subject to federal regulations must refrain from using the substance or face consequences. Recent Federal Cannabis News In 2015, the Office of Personnel Management (OPM) advised federal agencies that under federal laws on marijuana, it is considered a Schedule 1 controlled substance. The OPM also reminded federal agencies of the rules established in 1986 by President Ronald Reagan in Executive Order 12564, Drug-Free Federal Workplace. This order stated that: Federal employees must refrain from the use of marijuana; The use of marijuana, whether on or off duty, is contrary to the efficiency of federal services; and People who use marijuana (or any drugs currently illegal under federal law) are unsuitable for federal employment. Since 2015, public acceptance of marijuana use has continued to increase. In February 2021, the OPM issued new guidance for federal agencies designed to relax the hiring practices related to past marijuana use. Acknowledging that marijuana remains categorized as a Schedule I controlled substance under federal law, the OPM told agencies that use or possession of marijuana should not automatically disqualify the person from applying for federal employment. Instead, the federal agencies must find a nexus between the employee’s possession or use of marijuana and its impact on the integrity or efficiency of the government. What Does This Mean for Federal Employees? The OPM’s new guidance outlines the process for determining whether federal applicants using or in possession of marijuana are suitable for federal positions. Factors that agencies should look at include: Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and Criminal or dishonest conduct. As stated above, the OPM advised federal agencies that the existence of either of these factors should not automatically disqualify an applicant from consideration. Instead, agencies evaluate each individual applicant’s conduct on a case-by-case basis to determine whether their behavior will impact the integrity and efficiency of the federal government. The factors agencies must consider include: The nature of the position the applicant is seeking; The nature and seriousness of the applicant’s conduct; Relevant circumstances surrounding the applicant’s conduct; Contributing societal conditions; Absence or presence of rehabilitation; The recency of the conduct; and The applicant’s age at the time of the conduct. Additionally, the Federal OPM specifically noted that past marijuana use, including recently discontinued marijuana use, should be viewed differently than current or ongoing marijuana use. This case-by-case analysis applies not only to new applicants but also to incumbent federal government employees. Can I Use Marijuana If I Already Work for the Federal Government? You have completed the hiring process and been working for the federal government for several years. Now, are you allowed to use marijuana? Unfortunately, that answer is still no. The OPM reiterated that the mandates of Executive Order 12564, Drug-Free Federal Workplace, prohibiting the use of illegal drugs on or off duty remain in effect for all federal employees. Employees struggling with substance abuse issues should seek counseling and rehabilitation. Who is Considered a Federal Employee? Any job within the three branches of the United States Government—the judicial branch, the legislative branch, and the executive branch—is considered federal employment. The OPM reported in 2017 that the federal government employs at least 4.4 million workers. Areas of federal employment include: All military service members; Postal service workers; Department of Transportation; Department of Labor; Politicians and legislative staff; and The FBI. A common misconception about federal employment is that all federal employees work in Washington, D.C. However, this is not the case. In fact, the majority of federal government employees do not work in the D.C. area. Are There Other Limits on Marijuana Use in Legalized States? Marijuana use creates barriers for the federal employment sector, but that is not the only barrier. Student Loans Section 484(R) of the Higher Education Act of 1998 states that a student with a past conviction for possession of a controlled substance is not eligible for financial aid. Federal law still defines marijuana as a controlled substance. Therefore, a conviction for possession of marijuana can disqualify you from receiving any student financial aid. Purchasing a Firearm Federal law requires gun purchasers to fill out a federal Form 4473, which inquires about the unlawful marijuana use of the applicant. Because marijuana is still criminalized under federal law, any use of marijuana is considered unlawful. Thus, a marijuana user attempting to purchase a firearm may have his or her application denied. Furthermore, it should be noted that individuals who lie on Form 4473 can be charged with a felony. Such a charge carries a maximum penalty of five years in prison. Contact a Federal Employment Lawyer for Additional Details Navigating federal workplace requirements can be confusing and tricky, especially when federal law starkly differs from state law. Federal cannabis news may change at any time, but for right now, cannabis use still greatly impacts federal employment. Attorney Aaron Wersing has extensive experience in all aspects of federal government employment law. His familiarity with the intricacies of federal employment law can save you pain and frustration if you work in, or are applying for federal work. If you have questions, he can provide detailed explanations to address your concerns. Mr. Wersing knows that the process for protecting the rights of federal employees differs significantly from the private sector and he stands ready to fight for you. At the Law Office of Aaron D. Wersing, we are committed to protecting federal employees from having their rights abused. So contact us today to set up your free initial consultation.Read More
The Law Office of Aaron D. Wersing PLLC
The Lawyers for Federal Employees
Federal employees have unique rights unlike other employees, and many of those rights are governed by specific laws that are unique to federal employees. The Law Office of Aaron D. Wersing PLLC and our team of experienced federal employment lawyers are dedicated to helping federal employees understand and protect their rights.
Just like other employees, federal employees can face an array of challenges. When these challenges require you to file a lawsuit, an administrative complaint, or a claim for benefits, it is important that you have a knowledgeable advocate on your side. The Law Office of Aaron D. Wersing has experience with all types of legal issues affecting federal employees, including disability claims, discrimination and harassment, whistleblower claims, retaliation, wrongful termination, and other adverse employment actions.
If you are a federal employee, the process for protecting your rights is different than for most employees in the private sector. It is important that you have an attorney with specific experience in federal employee law, not just general employment law. Our practice is directly focused specifically on federal employee law.
Enforcing your rights as a federal employee frequently involves navigating various layers of bureaucracy. Additionally, it can often be challenging to determine which agency is responsible for your specific type of claim and what process that agency requires you to comply with.
The Law Office of Aaron D. Wersing has experience working with numerous agencies across the federal government regarding federal employee issues. These issues can include complaints or claims involving:
- The Merit Systems Protection Board (MSPB),
- The Equal Employment Opportunity Commission (EEOC)
- The Office of Special Counsel (OSC)
- The Federal Employees’ Retirement System (FERS)
- The VA Office of Accountability and Whistleblower Protection (OAWP)
- The National Labor Relations Board (NLRB)
- The Federal Labor Relations Authority (FLRA)
When dealing with claims before these agencies, even small mistakes, such as missing filing deadlines, failing to gather adequate supporting documents, or filing a claim with the wrong agency can be costly. Having an experienced federal employee lawyer on your side can make all the difference.
At the Law Office of Aaron D. Wersing, our team of federal employment attorneys is passionate about helping federal employees with any legal issues they may face. If you need help pursuing benefits you are entitled to or protecting your rights against wrongful conduct, contact us today.
How We Can Serve You
Meet Aaron Wersing
Federal Employee Attorney
Aaron Wersing is the founder of the Law Office of Aaron D. Wersing. His practice focuses solely on assisting federal employees in a broad array of litigation and transactional matters. Mr. Wersing’s practice includes the evaluation and resolution of a diverse variety of federal employment matters.
I can’t say enough good things about Mr. Wersing. He was dedicated to my case and because of his dedication he won my case. I was lost without him. I went to many attorney’s and all of them told me they were unable to help me because the government was to hard to fight against, but not Mr. Wersing. He knew his stuff . If your looking for an attorney who treats you like a person and just not like another number, Mr. Wersing is that attorney. He knows his stuff and will fight for your rights. I can never thank him enough.- Sandy | EEOC
Aaron Wersing is at the very top of every attorney I have met or dealt with. He is a patient, pleasant and professional attorney who is mission oriented and dedicated to get the job done. He helped me through a very arduous disability process allowing me to keep my self dignity and respect. I cannot imagine working with any attorney other than Aaron Wersing when applying for Fers Disability or any other employment & labor, employee benefits or workers compensation issues.- Howard M. | FERS Disability
Aaron is not only confident in getting things done, he is very compassionate and caring. He is a true fighter for what he believes is right. My case was a bit complicated but Aaron never backed down. Applying for OPM can be daunting and personal. Aaron has the ability to keep you focused and on track which means he understands how emotional it can be for somebody that has to retire due to medical conditions. Because of Aaron my OPM was approved the first time and we didn't have to do a reconsideration. If you want a good attorney that will fight for you, Aaron is your man. I will be forever thankful.- Tammy | FERS Disability
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Empowering Federal Employees To Know and Exercise Their Rights
No matter what your job is, you may encounter discrimination in the workplace during your career. There are several laws the Equal Employment Opportunity Commission (EEOC) enforces that protect federal employees from discrimination. But what is the federal EEOC complaint process? If you find yourself the victim of discrimination in the federal workplace, it’s important to understand your rights and how to enforce them with an EEOC complaint. Below is a breakdown of the 6-Step Federal EEOC Complaint Process. 1. Contact Your EEO Counselor Each agency has an equal employment opportunity counselor. Before filing a formal complaint with the EEOC, the first step of the federal EEO complaint process is to contact your agency’s EEO counselor within 45 days of the discrimination. Note that some agencies will use different terms for this office, such as the Office of Resolution Management (ORM) at the Department of Veterans Affairs. The EEO counselor will provide information about how a federal EEO complaint works. At this step, your counselor will provide details about the EEO process, including approximate timelines and your appeal rights. They will usually ask for information about your claims and bases too. Where applicable, you may also have the option to go through alternative dispute resolution (ADR). This step is also when you must choose whether to file your complaint through the EEO, negotiated grievance, or the Merit Systems Protection Board (MSPB) processes, if applicable. Not all cases have this choice, but when you do, federal employees may choose only one of these two paths and the option first chosen is generally considered to be your election. If you’re unsure where you should file your federal EEOC complaint, consider consulting a federal EEOC lawyer. Understanding Which Laws the EEOC Enforces The EEOC enforces four federal anti-discrimination laws: Title VII of the Civil Rights Act of 1964, The Equal Pay Act of 1963, The Rehabilitation Act of 1973, and The Age Discrimination in Employment Act of 1967. Together, these laws protect against discrimination based on a number of characteristics, including race, color, sex and sexual orientation, religion or national origin, age, and disability. Additionally, the EEOC works to protect employees from retaliation by their superiors or agency. 2. Filing a Formal Complaint If you can’t resolve the issue through counseling or ADR, your counselor will provide you with a written Notice of Right to File Formal Complaint, and provide a final Interview. This notice gives you the right to file a formal complaint with your Agency’s EEO office within 15 days. Read the Notice carefully for instructions on where to send your complaint. Generally you can file your Formal EEO complaint by mail or email. Each complaint must be properly drafted to include at least Contact information for you or your representative; Contact information for the person the claim is against; and A signed statement describing the events you believe resulted in discrimination, including when they occurred. After you submit your complaint, will review it to decide whether to conduct an investigation. 3. Your Agency Conducts an Investigation If your Agency accepts your claims, your agency will have to conduct an investigation into the alleged discrimination. Once the investigation is complete, you may request a hearing before an administrative judge, or you can request an immediate final decision from your agency. 4. Hearing Before an Administrative Judge Like other court proceedings, an EEOC hearing involves presenting your case to an administrative judge. Each party also has the opportunity to conduct discovery to obtain additional information. At the end of the hearing, the judge will review the record and issue a decision about whether there was discrimination. In some cases, a federal employee may not need to request a hearing. Accordingly, hearings do not always happen as part of the federal EEOC complaint process. 5. Your Agency Issues a Final Decision Whether you choose a hearing or not, the final main step is your agency’s final decision. The agency will review the judge’s final order or the evidence from the investigation and notify you whether it found any discrimination. If there was discrimination, the agency may implement the judge’s orders or its own remedy. Because final decisions may not be in the employee’s favor, federal employees have the right to appeal a final agency action to the EEOC’s appellate division, the Office of Federal Operations (OFO). 6. Appealing to the EEOC You may appeal your agency’s decision to the OFO within 30 days of that decision. During the appeal process, the OFO will review the entire history of your complaint and the evidence in the record. The OFO will then issue its own determination of whether there was any discrimination. Having a federal EEOC lawyer is the best way to make sure your arguments are properly presented in this case. Contact a Federal EEOC Lawyer The federal EEOC complaint process looks long and stressful, but it doesn’t have to be. The attorneys at the Law Office of Aaron D. Wersing have years of experience representing federal employees in a variety of employment matters. If you’ve suffered discrimination and need help with your EEOC complaint, we can help. Contact us today online or at 833-833-3529 for a free consultation.Read More
One of the biggest perks of being a federal employee is having access to the government’s comprehensive benefits package. Currently, most federal employees receive benefits under the Federal Employees Retirement System (FERS). Although there are resources explaining FERS and how it works, they aren’t always as helpful as they could be. We frequently get questions from federal employees asking how to balance their medical and financial needs, and many times these employees have never heard of benefits such as disability retirement. If you are wondering how does federal disability work, read on (or reach out!). In this blog post, we hope to demystify federal disability to help you best understand your options. What Is FERS? FERS stands for Federal Employees Retirement System. This program is the modern disability program offered by the federal government. If you started your service earlier than 1987, your disability benefits will come from the Civil Service Retirement System (CSRS) instead. Most of these provisions for disability retirement are substantially the same under CSRS, so if you are a CSRS employee you can qualify for disability retirement as well. When Am I Eligible for FERS Disability? Eligibility starts with your length of creditable service with the government. For employees covered under FERS, you must have at least 18 months of creditable federal civilian service to qualify. Note that federal employees covered under CSRS need five years of service to qualify. In addition, Your disability must prevent you from “useful and efficient service” in your current position (in other words, you have a deficiency in your performance, attendance, and/or conduct); The expected length of the disability must be one year or greater; Your agency must be unable to accommodate your disability, either in your position or through reassignment; You must apply for disability before your separation from service or within one year after; and You must submit an application for Social Security benefits. Whether your disability prevents you from useful and efficient service isn’t always obvious. For that reason, many federal employees seek advice from a federal disability lawyer. Does FERS Include Short-Term Disability? No, FERS does not include short-term disability. FERS does not cover disabilities expected to last less than one year. Other than sick leave, annual leave, and your agency’s leave bank (if available), there are no specific benefits for short-term disability. However in many cases of a short-term disability, the employing agency may be required to provide a reasonable accommodation. Reasonable accommodations may include leave, job restructuring, telework, ergonomic equipment, or another option which would allow the employee to perform the duties of his or her position. FERS Disability and Social Security As explained above, eligibility for FERS disability is partially dependent on the employee applying for Social Security benefits. So how does federal disability work when it comes to this requirement? Fortunately, you don’t have to receive approval for Social Security benefits to receive FERS disability; you just have to apply. You can be approved for both SSDI and FERS disability simultaneously. In such a case, you would generally receive your full SSDI benefit while receiving a reduced disability annuity from OPM. Unfortunately, keeping track of all the eligibility requirements can be difficult, especially if you’ve never worked with federal disability benefits in the past. We’re here to help you understand the process and make it as stress-free as possible. Applying for FERS Disability As with other government benefits programs, applying for FERS disability starts with completing several forms. Generally, you must complete at least SF 3107 and SF 3112. Additionally, you will need to provide documentation that you applied for Social Security disability, and other supporting documents depending on your responses on the SF 3107 and SF 3112 forms. During this first part of the process, your supervisor will also have to provide some information about your agency, position, and accommodations made available to you (if any). If you are still on agency roles and not separated, or are within 30 days of separation, you must apply through your agency. If you are more than 30 days separated, then you will apply directly to OPM. Once your application is submitted, the Office of Personnel Management (OPM) will review your eligibility before notifying you of its decision. What to Do If You Are Denied FERS Disability Benefits As a federal employee, you have a robust set of rights when it comes to your employment, including denial of benefits. In a case where OPM disallows your application for FERS disability, you have 30 days to file a reconsideration appeal with OPM. Note that on the reconsideration form, you may elect to submit additional information in support of your application. During this appeal, a reconsideration specialist will give your application a second review. If your reconsideration appeal is denied as well, your next option is an appeal to the Merit Systems Protection Board (MSPB). An MSPB administrative judge will review OPM’s decision to determine whether you are eligible for FERS disability. If the administrative judge also denies your benefits, you can appeal to the MSPB board. After that, you will have exhausted your administrative remedies, giving you the right to take your case to the United States Court of Appeals for the Federal Circuit. Losing FERS Disability Benefits Generally, once you’ve been approved for FERS disability you will keep your benefits as long as you remain disabled. However, OPM may require you to get periodic medical exams to continue receiving benefits. Accordingly, if you recover from your disability your benefits will stop. There are two other main reasons why you may lose your federal disability: Your income from wages and self-employment equals at least 80% of your base pay from the position you retired from; or You obtained employment in Federal service at an equivalent position. Additionally, remember that your standard non-disability FERS retirement annuity will start when you reach age at 62. As a result, your disability benefits will stop at that time and you will be switched over to regular retirement through OPM. Need Help with Your Federal Disability?...Read More