Legal Insider: Federal government adjusts position on marijuana

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Melissa L. Watkins, Esq.

Over the past year, there have been significant changes to the federal government’s stance on marijuana as it relates to federal employees, applicants, and clearance holders.

These changes, while still very much unfolding, signal that federal employees, applicants, and clearance holders will be treated differently when it comes to prior use of marijuana. It is important to note at the outset that while these changes suggest that prior use of marijuana may not be the barrier to employment or possessing a clearance that it once was, the federal government still does not authorize, condone, or accept the use of marijuana by current employees or clearance holders.

Federal Government Changes to Marijuana Policy

In the most recent wave of elections held around the country, marijuana was again a focus in several states. As a result of recent state ballot referendums, more than 155 million Americans will now live in states with legal weed. Maryland and Missouri passed legalization referendums on November 8, 2022, meaning there are now 21 states where anyone at least 21 years old will be able to legally possess marijuana.

That marks a seismic shift since Colorado and Washington became the first states to back full legalization at the ballot box a decade ago. While people will soon be able to legally purchase and use marijuana in 21 states, cannabis remains classified as a Schedule I drug on the Controlled Substances Act. That means cannabis use can still be a disqualifying factor for anyone applying for a security clearance or trying to enter federal employment.

However, along with the continued adoption of laws legalizing the substance at the state level, the federal government has begun undertaking efforts to change its stance on marijuana.

For instance, on December 21, 2021, Avril Haines, Director of National Intelligence (DNI), issued an unclassified memo to agency heads, which was “designed to provide clarifying guidance to federal agencies charged with determining [security] eligibility through adjudication,” following changes on the state and local levels. The big takeaways from the memo included the following:

• “Prior recreational marijuana use by an individual may be relevant to adjudications, but not determinative.” Employees are warned though, “In light of the long-standing federal law and policy prohibiting illegal drug use while occupying a sensitive position or holding a security clearance, agencies are encouraged to advise prospective national security workforce employees that they should refrain from any future marijuana use upon initiation of the national security vetting process.”
• With respect to the use of CBD products, using these cannabis derivatives may be relevant to adjudications in accordance with security regulations. Products containing greater than a 0.3 percent concentration of delta-9 tetrahydrocannabinol (THC), do not meet the definition of “hemp.” Accordingly, products labeled as hemp-derived that contain greater than 0.3 percent THC continue to meet the legal definition of marijuana, and therefore remain illegal to use under federal law and policy.
• An adjudicative determination for an individual’s eligibility for access to classified information or eligibility to hold a sensitive position may be impacted negatively should that individual knowingly and directly invest in stocks or business ventures that specifically pertain to marijuana growers and retailers while the cultivation and distribution of marijuana remains illegal under the Controlled Substances Act.

More recently, in October 2022, President Joe Biden announced he was issuing pardons to people with federal marijuana possession offenses — a move that impacts roughly 6,500 individuals — and directed federal agencies to review whether marijuana should be reclassified under federal law.

However, despite the directive, marijuana’s classification under the Controlled Substances Act remains unchanged. There has been some movement in Congress on the issue, with Senator Jamie Raskin announcing a forthcoming bill that would tackle federal employment issues related to marijuana use. However, Senator Raskin’s bill has not yet been introduced and it is unclear whether it would be passed if/when it does reach the Senate floor.

Finally, on November 23, 2022, the Office of Personnel Management (OPM) announced in the Federal Register significant proposed changes to the current landscape of forms utilized to establish trustworthiness of federal employees in positions of trust or requiring access to classified information. One area where significant changes are being proposed relates to prior drug use, specifically prior use of marijuana. The changes appear to implement much of the guidance contained in the December 2021 memo and could signal a noteworthy change in position by the federal government related to prior marijuana use, if adopted.

What Federal Employees and Clearance Holders Need to Know

Overall, the DNI’s guidance articulated in the December 2021 memo seems to raise the prospects of approval for security clearance applicants who previously have used marijuana or use hemp products with less than 0.3 percent THC. This is further supported by the recently proposed changes to the security questionnaires published by OPM in November 2022.

However, applicants, employees, and clearance holders should be fully cognizant of the fact that marijuana use remains illegal under federal law. This means that such individuals should continue to avoid the use of the substance, verify CBD products for THC concentrations, and avoid investment in cannabis businesses.

One point is clear: for those interested in pursuing federal employment or obtaining (or retaining) a security clearance, ceasing involvement with anything marijuana-related remains a good idea. While an applicant’s past actions will not automatically disqualify her from being deemed suitable for federal employment or obtaining a security clearance, the determinations will continue to consider prior involvement with marijuana, even if on a more limited basis.

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