Sep 10, 2021 | By Aaron D. Wersing | Read Time: 3 minutes | Federal Employment Law

What Is Bullying Under Federal Law?

If you have suffered bullying in the workplace, you might be able to receive relief under federal law if the bullying has certain characteristics. As a federal employee, you can maintain a legal action for bullying if that bullying also qualifies as harassment under Title VII of the Civil Rights Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act. If you are unsure if bullying at work is actionable, don’t resign yourself to the stress and fear, contact an experienced workplace bullying lawyer immediately for help. Is Workplace Bullying Illegal? It depends. Federal work bullying laws are really laws against harassment. Employment bullying qualifies as illegal harassment if it’s a condition to continue your employment or it’s severe and pervasive enough for a reasonable person to consider it hostile. Bullying cannot be illegal harassment unless it’s unwelcome conduct motivated by one of the following factors: Race, Color, Religion, Sex, Sexual orientation, Gender identity, Pregnancy,  Age (if you are 40 or older), Disability, Genetic information, Family history, or Medical history. Your employer can be guilty of harassing you for being a member of a protected group mentioned above or for perceiving you to be a member of a protected group. Your employer can be liable for harassment committed by a supervisor, one of their agents, a co-worker, or a non-employee. You also don’t have to be the person harassed to maintain a legal action. If harassment of another person affects you, you could have a claim.  Can I Sue for Workplace Bullying? Yes. Legal action against workplace bullying is available to you if the bullying fits the definition of harassment under federal law. However, federal employees can bring workplace bullying lawsuits only after they have followed the steps to make an administrative complaint with the federal Equal Employment Opportunity (EEO) office.  What Is the Procedure for Filing Workplace Bullying Complaints and Workplace Bullying Lawsuits? There are many steps on the way to filing a lawsuit against your employer for harassment. Suing for workplace bullying can be a complicated process, and a lawyer for workplace bullying can help you fulfill every step. Filing a Workplace Bullying Complaint If you are a federal employee, bullying in the workplace law requires that you first reach out to an EEO counselor at your employer’s agency within 45 days of suffering harassment. You can either take part in counseling or alternative dispute resolution (ADR).  If ADR or counseling doesn’t solve the problem, you can file a formal complaint with your agency’s EEO office. You have 15 days after receiving an EEO counselor’s filing notice to file a complaint.  The agency can either dismiss your complaint for procedural reasons, or conduct an investigation. The agency has 180 days to investigate. After investigating, the agency gives you a notice about asking for a hearing or issuing a decision about whether there was discrimination.  If you want a hearing, it is held before an administrative law judge. You have 30 days from the agency’s hearing notice to file for a hearing. You can request a hearing in writing or online. After the judge makes a decision, the agency gets 40 days to decide if they are going to grant you relief that the judge orders. This decision is called a final order.  If you don’t agree with the final order, you can request an appeal within 30 days. You can also ask for reconsideration of the appeal decision within 30 days. If you follow the procedure correctly, you have many chances to get justice against harassment. An experienced attorney for workplace bullying can preserve your rights at every level of the process.  Filing a Workplace Bullying Lawsuit Once you have been through the administrative complaint and appeals process, you can file a bullying-at-work lawsuit. There are a number of different times when you can file a lawsuit, depending on the situation. To file a lawsuit against your employer for violating laws against workplace bullying, you have to follow these timelines: You can file after 180 days have passed since filing your complaint, if there hasn’t been an agency decision or appeal; You must file within 90 days of receiving an agency decision on your complaint, if there hasn’t been an appeal; You can file after 180 days have passed since filing your appeal, if there hasn’t been an appeal decision; or You must file within 90 days of receiving an appeal decision. A workplace bullying attorney can determine if the time is right for you to file a lawsuit and champion your rights to a safe workplace in court. If you are curious about workplace anti-bullying laws by state, many of them are similar to the federal laws (though deadlines and procedures vary). But you must follow the federal procedures above if you are a federal employee.  Contact an Attorney for the Protection You Need Please remember that you don’t have to endure every hostile behavior at work to receive a paycheck. The workplace bullying lawyers at the Federal Employment Law Firm of Aaron D Wersing PLLC are experienced in federal employment law and dedicated to protecting federal employees’ rights. Contact us online or call us at 866-508-2158 for the guidance and protection you need.

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Aug 25, 2021 | By Aaron D. Wersing | Read Time: 3 minutes | Federal Employment Law

What to Know About Secret Clearance After You Leave Your Federal Job

Certain federal jobs deal with sensitive information that requires a higher level of trust in the employee. To make sure only qualified people get these jobs, the government requires these employees to obtain some level of security clearance. But what happens to that secret clearance when you leave your job? More importantly, how long does secret clearance last? What Is Secret Clearance? The U.S. Government grants secret clearance, also called security clearance, to people who prove themselves trustworthy enough to have access to classified information. The government further divides secret clearance into different levels based on the sensitivity of the information involved in the job. Top secret clearance is the highest level, and grants cleared employees with the highest level of access. Confidential clearance is the lowest level, granting cleared employees the lowest level of access. Finally, secret clearance is in the middle. How Long Does a Secret Clearance Last? While employed as a contractor for a government agency dealing with classified information, your secret clearance will remain in effect indefinitely. However, this doesn’t mean it will never expire. Employees with secret clearances must undergo periodic reinvestigations to make sure they’re still eligible. The exact period between each reinvestigation varies based on the level of clearance you have. Five years for top secret clearance; Ten years for secret clearance; and Fifteen years for confidential clearance. Other reevaluations may occur at more random intervals to make sure secret clearance employees aren’t engaging in illegal conduct. When Does Secret Clearance Expire? Many federal employees wonder how long does a secret clearance last once they leave their federal job? Put simply, your security clearance “terminates” when you leave your federal job permanently. However, it’s important to understand that when your secret clearance terminates, it doesn’t disappear completely. Instead, a terminated secret clearance changes status from “active” to “current.” In other words, while you’re employed, you have an active secret clearance. When you leave that secret clearance “deactivates” and changes to current status. So when does it actually go away? Secret clearance expiration is two years from the time it “terminates” and becomes inactive. Can I Have My Secret Clearance Reactivated? While your secret clearance is in current status, you can reactivate it without going through the entire approval process. If you have any other clearances on top of your secret clearance, those may need to be re-obtained after a certain period of time. Generally, however, you can reactivate your secret clearance within two years. If My Secret Clearance Expires, Will It Be Easier to Obtain New Secret Clearance in the Future? No. Once your secret clearance expires, you will have to start the whole process over. That means filling out Standard Form 86 again and undergoing a background investigation before your new secret clearance will be granted. What Happens to My Secret Clearance If I Get Fired? You might think that getting fired means you automatically lose your secret clearance. However, this isn’t necessarily true. Remember that employment termination can happen for a variety of reasons, not all of which warrant immediate expiration of your secret clearance. For example, if you’re a government contractor, your contract may end, leading to your termination. In this case, you likely haven’t done anything to indicate that you’re untrustworthy or no longer eligible for secret clearance. On the other hand, if your termination involved any of the “Adjudicative Criteria” for security clearance eligibility, you’ll have any future attempts at secret clearance denied. The Adjudicative Criteria are a list of guidelines for determining eligibility for secret clearance, and include: Allegiance to the United States and any foreign influence that might affect you; Personal conduct, including sexual behavior and drug and alcohol use; Your psychological condition; Criminal conduct; and Your ability to handle protected information. You can view the full list of Adjudicative Criteria at the website from the Office of the Director of National Intelligence. Does My Secret Clearance Apply to Private-Sector Employment? Not necessarily. Although some private-sector jobs involve sensitive or confidential information, government security clearance only applies to positions working for the federal government. Accordingly, your clearance may still be useful if you switch to another government agency or go to work for a government contractor. If you apply for a position in the private sector, however, your security clearance won’t apply. Still Have Questions? Contact a Federal Employment Lawyer Today The Federal Employment Law Firm of Aaron D Wersing, PLLC, focuses on assisting federal employees in a wide range of issues. If you’re dealing with discrimination, worried about blowing the whistle, or need more information about your rights as a federal employee, we can help. We’ve helped hundreds of federal employees get their jobs back or stop discriminatory workplace behavior. Contact us today through our online form or by phone at (833) 833-3529 to schedule a free consultation.

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Aug 25, 2021 | By Aaron D. Wersing | Read Time: 3 minutes | Federal Employment Law

Filing Workers’ Comp for Stress and Anxiety—What Federal Employees Should Know

Most federal workers are familiar with the workers’ compensation program, operated by the Office of Workers’ Compensation Programs (OWCP). The OWCP allows for workers who suffer a work-related injury to obtain medical and income-replacement benefits while they are unable to work. What fewer people know, however, is that federal employees can also obtain workers’ compensation for mental health disorders as well. Read on to learn more about when you can get workers’ comp benefits for stress and anxiety. If your federal employment is responsible for causing or exacerbating a mental health condition, you may be eligible for workers’ compensation benefits. At the Law Office of Aaron D. Wersing, we proudly help government employees who were injured on the job obtain the benefits they need and deserve. With extensive experience handling a wide range of workers’ compensation cases, including many involving mental health diagnoses, the Law Office of Aaron D. Wersing is well-equipped to effectively handle your claim. Stress and Anxiety in the Workplace Stress Stress is the body’s normal response to emotional or physical tension. In some cases, stress can help you overcome obstacles that you may not have otherwise been able to overcome. However, in larger amounts, stress can be detrimental to a person’s physical and mental wellbeing. According to a recent survey done by the American Institute of Stress, 80% of workers experience high levels of stress in the workplace. And roughly a quarter of all participants indicated that their job was the primary source of their stress. Of course, this may not come as news, as every job can occasionally be stressful. However, there is a point where the everyday stress of a job crosses the line and becomes something more damaging. Anxiety Generalized anxiety disorder is a mental health condition in which someone displays excessive anxiety or worry on most days, for a period of at least six months. Generalized anxiety disorder often seriously interferes with someone’s ability to live their life the way they intended. For example, common symptoms of generalized anxiety disorder include the following. Irritability, Drowsiness, Inattentiveness, Feeling on-edge, Muscle tension, and Sleep problems. Panic attacks are another form of anxiety disorder in which someone experiences unexpected periods of intense fear that come on quickly and reach their peak within minutes. Symptoms of a panic attack include: Heart palpitations, Trembling, Shortness of breath, Sweating, Feelings of doom, and Feeling out of control. Panic attacks can be very scary and sometimes require immediate medical attention.  Can You Get Workers’ Compensation for Stress and Anxiety? Yes, federal workers can obtain workers’ compensation benefits for stress and stress-related conditions such as anxiety. However, there are a few things to keep in mind when considering filing an application for workers’ comp for stress and anxiety. If you have a diagnosis of anxiety, you will have an easier time obtaining benefits than if you are basing a workers’ compensation claim on stress alone. However, you will still need to show that your anxiety was either caused by your job or that your job exacerbated your existing case of anxiety. Applying for workers’ compensation benefits for stress is even trickier because there is often no diagnosis. When it comes to getting workers’ compensation for stress, consider the following questions. Is the stress severe? Regular, everyday stress is not the type of stress that the OWCP is concerned with. Stress is a normal part of almost every job, yet not everyone can rightfully file a workers’ comp stress claim. Thus, to be eligible, you must show that your occupational stress is severe, to the point where it is more than you can withstand. Is your job objectively stressful? If you find your job to be very stressful but your colleagues do not, you may have a harder time qualifying for workers’ compensation benefits. This is because you must show that your stress is objective to obtain benefits. This means that others in a similar situation experience the same level of stress. So, if you are particularly susceptible to the stressors of your workplace, you may have a harder time obtaining workers’ compensation benefits for stress. Is your stress job-related? To succeed in any workers’ comp claim, you must show that your injuries (physical or emotional) are related to your occupation. Stress is no exception. In fact, it is actually more difficult to prove stress is job-related because most people have other sources of stress in their life. For example, the OWCP may claim that your stress was caused by genetic factors or issues outside the workplace. Are You Suffering Severe Stress or Anxiety Related to Your Federal Employment? If you are a federal employee and are currently suffering from stress or anxiety, contact the workers’ compensation lawyers at the Law Office of Aaron D. Wersing for immediate assistance. At our federal workers’ compensation law firm, we represent federal employees in all types of work injury claims—including those involving mental health conditions such as stress and anxiety. Unlike many other local employment law firms, we represent only federal employees, giving us an unparalleled knowledge of the laws and regulations that govern our clients’ cases. To learn more, and to schedule a free consultation, give us a call today. You can also reach us through our online contact form.

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Jul 12, 2021 | By Aaron D. Wersing | Read Time: 3 minutes | Federal Employment Law

COVID-19 Paid Leave as a Federal Employee—What to Know

Since the COVID-19 Pandemic began last year, tens of millions of Americans have fallen sick with the disease. To help protect its workers and their families, the government has offered several benefits to federal workers who experience difficulties because of COVID-19.  If you’re one of the many federal employees with coronavirus, you’ve probably asked yourself, Do I get paid if I have COVID-19? The good news is that there is paid COVID-19 leave for federal workers who had the disease, been quarantined, or had to care for an ill family member. Take a moment to learn more about whether you are eligible for federal COVID-19 leave.  Is There Federal COVID-19 Leave? Yes. The latest effort to provide federal employees with leave began in March. At that time, Congress passed the American Rescue Plan Act of 2021 (ARPA). ARPA included a provision that granted federal employees up to 15 weeks of emergency paid leave (EPL) under certain COVID-19-related circumstances. As outlined by the Office of Personnel Management (OPM), employees can obtain COVID-19 leave if they meet one of eight qualifying circumstances. Here are several of those circumstances: The employee is experiencing COVID-19 symptoms; The employee is receiving the COVID-19 vaccine or recovering after experiencing side effects from the vaccine;  The employee is subject to a federal, state, or local quarantine order that is based on COVID-19; The employee received advice from a doctor or other health care provider to quarantine due to COVID-19; The employee is caring for a family member who is subject to a COVID-19 quarantine order; or The employee is caring for their child because the child’s school or place of care is not open due to COVID-19.  To receive the paid sick leave, the employee must be unable to work at their office and unable to work from home because of the qualifying circumstance. Also, federal agencies cannot force any employee to use other forms of paid leave before requesting EPL.  Limitations of Federal COVID-19 Leave Under the American Rescue Plan Act Unlike regular paid sick leave, EPL has a monetary cap. An employee will receive 100% of their salary if that salary is less than $1,400 per week. EPL provides no compensation beyond that cap. Therefore, if you normally make $2,000 a week in your federal position, you’ll only receive $1,400 for each week you use EPL.  Also, there is a small window of time to use emergency paid leave. Employees can only use EPL between March 11 and September 30. 2021. Finally, the government set aside a limited amount of money—$570 million—to pay for emergency paid leave. If those funds run out before September 30, 2021, then you cannot receive EPL.  Who Processes EPL Claims? After you request EPL from your employer, they’ll decide whether or not to accept your request. Assuming they accept your claim, they will forward it to OPM for reimbursement. However, it may take time for OPM to resolve your claim because it processes EPL claims on a first-come, first-served basis. That’s one reason why it’s important to request EPL sooner rather than later.  What If I Had COVID-19 in 2020? You cannot request EPL if you had COVID-19 last year. Before passing ARPA, the government offered federal COVID-19 leave under the Emergency Paid Sick Leave Act. After Congress passed the Emergency Paid Sick Leave Act, OPM released clarifying guidance for all federal agencies. According to that guidance, EPSLA gave employees up to 80 hours of paid leave if they were in quarantine, experiencing COVID-19 symptoms, or caring for a family member. EPSLA’s paid sick leave equaled 100% of the employee’s regular pay if the employee was in quarantine or had COVID-19 symptoms. Unlike EPL, EPSLA’s COVID-19 leave did not have a pay cap.  So Do I Get Paid If I Have COVID? Yes and no. There isn’t a law that gives COVID-19 payments specifically to federal employees. However, federal employees indirectly receive payments through EPL because it is paid leave. Moreover, any federal employee who made less than a certain amount of money ($75,000 for an individual or $150,000 for a couple) received stimulus checks earlier this year.  Is Your Employer Giving You the Federal COVID-19 Leave that You Deserve? Getting COVID-19 can be a devastating experience with long-lasting effects. Because of that, the new federal COVID-19 leave law grants you special rights for COVID-19-related situations. If your employer is denying you emergency paid leave or retaliating against you because of your sick leave request, they may be infringing on your rights.  At the Law Office of Aaron D. Wesing, PPLC., we work to help federal employees stand up for their rights. We have many years of experience assisting hundreds of federal employees with a huge range of federal employment problems. If you think your employer is violating your rights, contact us online or call (833) 833-3529 for a free initial consultation today. Don’t wait. Let us help you!

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Jul 9, 2021 | By Aaron D. Wersing | Read Time: 3 minutes | Federal Employment Law

Guidelines for Federal Workplace Drug Testing

Although being a federal employee has many benefits, it carries certain responsibilities as well. One of these obligations is to not use illegal drugs. To ensure that federal employees comply with this restriction, the government sometimes requires them to receive regular drug testing. In other situations, the government requires employees to be drug tested before starting a position.  However, there isn’t one clear-cut approach to drug testing. The exact federal employee drug testing policy varies from one position to the next. Because the rules around federal employee drug testing are far from straightforward, it’s critical to learn about drug testing laws to protect your rights.  A Brief Background of Federal Drug Testing Laws Prior to the 1970s, drug testing was unheard of in the United States. However, this changed during the Vietnam War. High levels of drug usage amongst American soldiers abroad and throughout the growing counterculture prompted the government to launch a “war on drugs.”   In 1986, President Ronald Reagan signed Executive Order (EO) 12564, which mandated that all government employees refrain from using illegal drugs at all times. It also stated that anyone who uses illegal drugs is unsuitable for federal employment.  Common Federal Employee Drug Testing Situations Executive order 12564 defined various circumstances where federal employees could receive drug testing.  Testing Designated Positions (TDPs) Under executive order 12564, each federal agency had to develop its own federal employee drug testing policy. One part of making an agency-wide drug testing policy is designating certain jobs as “testing designated positions” (TDPs). Any employee occupying a TDP can receive a drug test at any time. Agencies typically test a certain percentage of employees occupying TDPs each month. While the exact policy varies somewhat, federal law requires agencies to test at least 30% of all employees in TDPs every 12 months.  Each federal agency is free to designate any position as a TDP. However, the Department of Health & Human Services released guidance in 2010 to help agencies determine which positions should be TDPs. According to the DHHS guidance, some positions are “presumptive” testing designated positions. “Presumptive” TDPs are those that the agency must designate as TDPs unless there is a compelling reason to not do so. Examples of “presumptive” TDPs include: Positions requiring the use, possession, or maintenance of firearms; and Positions involving the use of a motor vehicle, aircraft, or train. The DHHS’s guidance also identified “preferred” TDPs which include: Presidential appointments; Frontline law enforcement positions; Drug rehabilitation positions; and Positions requiring security clearances.  If you are in a TDP, know that you may be subjected to a drug test at any time with little or no advance notice.  Federal Government Pre-Employment Drug Tests Whether a position is considered a TDP or not, agencies can make passing a drug test a condition of employment. When that happens, agencies can mandate that job candidates receive drug tests prior to beginning employment with the agency.  When Can Federal Employees Who Aren’t in a TDP Be Drug Tested? Every federal employee, regardless of whether they’re in a testing designated position, can receive a drug test in two situations after they have begun employment.  The first situation is if there is a “reasonable suspicion” that the employee is under the influence of illegal drugs. The agency can base its reasonable suspicion on various signs, including physical symptoms of being under the influence of drugs, abnormal behavior, and an arrest for drug possession or drug trafficking offense. The second situation is if the employee is involved in a work-related or vehicular accident.  Can I Get in Trouble for Using a Drug That Is Legal in My State? Yes. This is a common issue with marijuana now that it is legal for recreational or medical use in 36 states and Washington D.C. Even if a drug is legal under your state’s laws, it can still be illegal under federal law. And because federal laws control every federal workplace, you can be disciplined for using any drug that the federal government says is illegal. What Drugs Do Agencies Test for? The most common drug classes that agencies test for are: Marijuana, Cocaine, Opiates (heroin, opium, etc.),  Amphetamines Methamphetamines, and PCP. However, agencies can test for any illegal drug.  Want to Learn More About How Federal Drug Testing Laws Affect You? Federal drug testing laws and policies aren’t really straightforward. On top of that, federal agencies are far from perfect. If your employer is forcing you to get a drug test without reason, they may be infringing on your rights. At the Law Office of Aaron D. Wesing, PPLC., we work to guarantee that federal employees get the treatment they deserve from their employers. We’ve helped hundreds of current and former federal employees over the years stand up for their rights. So if you think that your federal employer is violating your rights, contact us or call (833) 833-3529 for a free initial consultation today.

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Jul 9, 2021 | By Aaron D. Wersing | Read Time: 3 minutes | Federal Employment Law

What You Need to Know About Paid Parental Leave As a Federal Employee

Last year, the federal government created a new paid leave category for federal workers—paid parental leave (PPL). As part of the Federal Employees Paid Parental Leave Act of 2019 (FEPLA), most federal workers can take up to 12 weeks of PPL in connection with the birth of a child. Employees can also use federal paid parental leave for the placement of a child under their care. This includes situations like adoption and foster care.  Paid parental leave is just the latest addition to the many benefits of federal employment, including generous retirement benefits, regular working hours, and ample health benefits. Learn more about the government’s new federal paid parental leave below. Which Federal Employees Qualify for Paid Parental Leave? To use paid parental leave, you must complete at least 12 months of federal service as stated in 5 CFR 630.1201(b)(1). Furthermore, you must not be under a temporary appointment (less than one year). You also cannot be an intermittent employee.  Provided you meet these basic requirements, you are eligible to take paid parental leave under FEPLA.   When Did Paid Parental Leave for Federal Employees Come Into Effect? As the name of the bill suggests, Congress passed the Federal Employee Paid Parental Leave Act of 2019 in December of that year.  However, the rule implementing the bill’s provisions did not come into effect until October 1, 2020. This means that federal employees cannot take any PPL for any births or placements of children that took place before that date. Additionally: You may only use PPL during the 12-month period immediately following the birth or placement of your child.  If multiple children were born or came under your care at the same time, you can only use one 12-week period of PPL.  However, if you have multiple children at different times during one year, each child qualifies you for a new PPL period.  What Are My Options If I Had a Child Before the Paid Parental Leave Law Came Into Effect? If your child was born or came into your care before October 1, 2020, you can still take leave to care for them. However, you won’t receive any pay during that time.  Before FEPLA, the closest thing to a Federal employee maternity leave law or a Federal paternity leave law was the Federal and Medical Leave Act of 1993 (FMLA).  FMLA allows eligible federal employees to take leave for up to 12 weeks for a variety of medical reasons, including the birth of a child. However, unlike FEPLA, FMLA provides employees only unpaid leave. Furthermore, you have to meet the same standards for FMLA as you would for FEPLA.  Can I Use Leave Under Both FMLA and FEPLA? No. PPL is provided as a replacement for the unpaid leave provided under FMLA. However, you can use sick leave and annual leave in coordination with PPL. Do I Have to Use My Sick or Annual Leave Before Using Paid Parental Leave? No. In fact, the Office of Personnel Management (OPM)—the agency responsible for determining the personnel practices of all federal agencies—explicitly states that federal agencies cannot force their employees to take other forms of leave before using PPL.  How Do I Request Paid Parental Leave? Most federal agencies have their own paid parental leave request forms. If you intend to request PPL, contact your local human resources office to learn about the forms that your agency uses.  Please note that you must provide supporting medical documentation if your employer requests it. The types of supporting documentation you have to submit will vary from agency to agency.  That said, OPM released guidance for the kinds of documents agencies may accept. Commonly accepted medical documents include birth certificates, hospital records, and any documents that name you as a parent.  Finally, FEPLA requires that you sign an agreement promising to work at least twelve weeks of work after using PPL.  Is Your Federal Employer Giving You the Paid Parental Leave You Are Entitled To? The new federal paid parental leave law recognizes that the birth or placement of a child is a life-changing event. It’s also a stressful period that requires your full attention without the interference of work. If your employer is denying you paid parental leave or retaliating against you because you took PPL, they are infringing on your rights.  That’s why we are here. At the Law Office of Aaron D. Wesing, PPLC., we fight to protect our clients’ rights. We also work to ensure that they get fair treatment from their employers.  Over the years, we’ve helped hundreds of federal employees deal with a huge range of federal employment problems. So let us help you stand up to your employer. If you think that your federal employer is violating your rights, contact us online or call (833) 833-3529 for a free initial consultation today. 

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May 28, 2021 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

Using Marijuana as a Federal Employee Still Has Consequences (Even if It’s Legal in Your State)

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.

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