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Federal Employment Law

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:

  1. Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and
  2. 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.

what happens when a federal employee test is positive for marijuana
Marijuana use creates barriers for the federal employment sector, but that is not the only barrier.

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.

Author Photo

Aaron Wersing, Attorney at Law

Aaron Wersing is the founder of the Law Office of Aaron D. Wersing. Mr. Wersing graduated from the Georgia State University College of Law with a Doctorate in Jurisprudence and was the recipient of the CALI Excellence for the Future Award. Mr. Wersing previously attended the University of Georgia, where he received a Bachelor of Business Administration degree in Accounting. Mr. Wersing is an active member of his local community. Mr. Wersing acts as a volunteer attorney with Houston Volunteer Lawyers, the pro bono legal aid organization of the Houston Bar Association. He is also a member of professional legal organizations such as the National Employment Lawyers Association and the American Inns of Court. To reach Aaron for a free consultation, please call him at (833) 833-3529.

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