OPM cautions feds on marijuana use

Protesters rally in support of marijuana legalization in front of the White House in April, 2016. (Image credit: Rena Schild / Shutterstock.com)

The Democratic Party platform in 2020 called for the decriminalization of marijuana use, but that doesn't mean the Biden administration is welcoming recreational use among federal employees – even where the substance is legal.

The use of marijuana and cannabis-derived products for medical purposes has a legal basis in all but three states; 15 states and the District of Columbia have passed laws decriminalizing or legalizing the recreational use of pot. Virginia is on the cusp of conferencing marijuana bills passed in the state's House and Senate in the closing days of the legislative session.

If Virginia's law passes, then in the National Capital Region alone there will be more than 415,000 federal jobs located in jurisdictions where recreational pot use is permitted. California, where recreational use is permitted, is home to more than 148,000 federal jobs.

Past marijuana use is not necessarily a barrier to federal employment, according to a Feb. 25 memo from Kathleen McGettigan, the acting director of the Office of Personnel Management, but current or ongoing use is another matter.

"Heads of agencies are expected to continue advising their workforce that legislative changes by some states and the District of Columbia do not alter federal law or executive branch policies regarding a drug-free workplace," McGettigan wrote. "An individual's disregard of federal law pertaining to marijuana while employed by the federal government remains relevant and may lead to disciplinary action."

The report cautions in a footnote that even use of cannabis-based products that have low concentrations of THC could lead to positive drug test results. The Food and Drug Administration "does not certify the level of THC in these products and the percent of THC cannot be guaranteed," the report states.

Marijuana is illegal under federal law and classified as a Schedule I drug alongside heroin, LSD and methamphetamine. A Reagan-era executive order mandating a Drug-Free Federal Workplace stated that feds "are required to refrain from the use of illegal drugs," that the "use of illegal drugs by federal employees, whether on or off duty, is contrary to the efficiency of the service" and that "persons who use illegal drugs are not suitable for federal employment."

That order is still in place, the OPM memo notes.

For applicants to federal jobs with a history of marijuana use, there is more leeway – as long as that use is in the past.

McGettigan advised agencies to consider the sensitivity of the job in question, the extent and circumstances surrounding marijuana use, the age of the person in question at the time of the use and how recently it occurred.

"Past marijuana use, including recently discontinued marijuana use, should be viewed differently from ongoing marijuana use," the memo states. The memo also advises agencies to consider "the absence or presence of rehabilitation or efforts toward rehabilitation" when making a decision to hire an individual with a history of marijuana use.

Feds aren't exactly being singled out. A Congressional Research Service report on federal drug laws released earlier this month notes that "people who use marijuana, even for medical purposes, generally enjoy little or no legal protection from adverse employment consequences."