The top federal employment agency is proposing to revise questions that job applicants must face about past marijuana use “in recognition of changing societal norms” as more states move to legalize cannabis. The move, it says, “may improve the pool of applicants for federal employee and federal contractor positions.”
In a notice set to be published in the Federal Register on Wednesday, the Office of Personnel Management (OPM) says it’s hoping to consolidate various forms that applicants for federal positions must fill out into a new unified Personnel Vetting Questionnaire (PVQ) that includes refined marijuana questions.
“The proposed information collection will streamline multiple existing information collections, as well as the renewal cycle for them, commensurate with on-going efforts to improve personnel vetting processes and the experience of individuals undergoing personnel vetting,” OPM said.
For now, prospective federal workers are still prohibited from using cannabis regardless of state law, but the office signaled that past marijuana use would be treated with additional discretion compared to other federally illicit substances.
“Questions regarding illegal drug use on the PVQ are divided into separate areas to distinguish between use of marijuana or cannabis derivatives containing THC and use of other illegal drugs or controlled substances, in recognition of changing societal norms,” the notice says. “In addition, the PVQ has a more limited scope of questioning regarding past use of marijuana in comparison to other illegal drugs.”
“Currently, use of marijuana by federal employees is prohibited, while past use of marijuana by applicants is evaluated on a case-by-case basis when agencies make trust determinations,” it continues. “Given the legal landscape at the state level regarding use of marijuana, distinguishing between past marijuana use and use of other illegal drugs on the PVQ may improve the pool of applicants for federal employee and federal contractor positions.”
The text of the proposed employment forms that would be affected by this policy change are not yet available, and a 60-day public comment period will open after the notice is formally published on Wednesday. But on existing forms like the SF85, questions about illicit substances are already somewhat disaggregated with respondents being able to check off which drugs they have used, indicating that future forms would distinguish cannabis even further.
OPM said that the policy change is necessary in order streamline “the multiple existing information collections into parts that build upon one another according to the risk and sensitivity of the position,” which will “allow for greater efficiency in vetting processes and reduce the burden on individuals who move to positions of greater risk or sensitivity.”
The Biden administration instituted a policy last year authorizing waivers to be granted to certain workers who admit to prior cannabis use, but certain lawmakers are pushing for additional reform.
For example, Rep. Jamie Raskin (D-MD) said at a congressional hearing on marijuana legalization last week that he intends to file a bill soon aimed at protecting federal workers from being denied security clearances over marijuana.
“We’ve got 2.85 million federal employees in America—in my state, more than 100,000 people,” he said. “And people have been disqualified from federal employment because they honestly admit on a security clearance form that they have once used marijuana, something that more than half of the country has done.”
Just before the House passed a marijuana legalization bill earlier this year, Raskin filed an amendment to require federal agencies to review security clearance denials going back to 1971 and retroactively make it so cannabis could not be used “as a reason to deny or rescind a security clearance.” That measure was narrowly defeated in a floor vote, however.
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The text of the congressman’s forthcoming bill hasn’t yet been made available, so it’s not clear if the scope will only cover past cannabis use, for example, or if it would allow federal employees who live in states that have enacted legalization to continue using marijuana on their own time and still keep their security clearances.
As part of advancing the National Defense Authorization Act (NDAA), Senate leaders sought to attach separate broader intelligence legislation that had included a provision preventing the denial of security clearances over cannabis which was approved by a Senate committee earlier this year.
But two GOP senators protested the inclusion of the marijuana language and it was consequently dropped from the measure, prompting the sponsor to separately file different, broader amendments on the issue.
One of the proposals from Sen. Ron Wyden (D-OR) would prevent the denial of federal security clearances for people over cannabis use at any time, while the other would limit the protection only to people who admit to past use prior to entering national security vetting.
As more states have moved to legalize marijuana in some form, workplace cannabis policies have been under close scrutiny.
Earlier this year, the nation’s largest union representing federal employees adopted a resolution in support of marijuana legalization and calling for an end to policies that penalize federal workers who use cannabis responsibly while they’re off the clock in states where it is legal.
A federal marijuana legalization bill filed by Senate Majority Leader Chuck Schumer (D-NY) in July also contains a provision that would specifically prohibit federal employers from testing workers for cannabis, with certain exceptions for sensitive positions such as law enforcement and those involving national security.
But in general, federal agencies have been reluctant to loosen cannabis-related employment rules despite state efforts to legalize cannabis for medical and recreational use.
For example, the Substance Abuse and Mental Health Services Administration (SAMHSA) recently proposed a changes to drug testing policies for federal workers that would clarify that having a doctor’s recommendation for medical marijuana or any other Schedule I drug is not a valid excuse for a positive drug test.
Meanwhile, the director of national intelligence (DNI) said late last year that federal employers shouldn’t outright reject security clearance applicants over past use and should use discretion when it comes to those with cannabis investments in their stock portfolios.
FBI updated its hiring policies last year to make it so candidates are only automatically disqualified from joining the agency if they admit to having used marijuana within one year of applying. Previously, prospective employees of the agency could not have used cannabis within the past three years.
The Department of Transportation (DOT) also took a different approach to its cannabis policy in 2020, stating in a notice that it would not be testing drivers for CBD. However, DOT recently reiterated that the workforce it regulates is prohibited from using marijuana and will continue to be tested for THC, regardless of state cannabis policy.
Rep. Earl Blumenauer (D-OR) sent a letter to the head of DOT in May, stating that the agency’s policies on drug testing truckers and other commercial drivers for marijuana are unnecessarily costing people their jobs and contributing to supply chain issues.
The Environment Protection Agency (EPA) also emphasized to its workers that they are prohibited from using marijuana—or directly investing in the industry—no matter the state law or changes in “social norms” around cannabis.
While the Biden administration did institute a waiver policy meant to provide discretion as it relates to federal employment and past cannabis use, it’s come under fire from advocates following early reports that the White House fired or otherwise punished dozens of staffers who were honest about their history with marijuana.
Then-White House Press Secretary Jen Psaki attempted to minimize the fallout, without much success, and her office released a statement last year stipulating that nobody was fired for “marijuana usage from years ago,” nor has anyone been terminated “due to casual or infrequent use during the prior 12 months.”