If you use marijuana legally according to your state’s law, should you still be barred from federal employment?
Context
Eight states plus the District of Columbia have legalized recreational marijuana. Potentially several more states such as Michigan and Oklahoma will potentially join them later this year, as November ballot referenda.
However, the drug remains illegal on a federal level. It’s categorized as a Schedule I drug, the same as heroin — and a stricter classification than cocaine.
The only reason state legalization has been allowed to proceed at all is because both the Obama Justice Department starting in 2013 and Trump Justice Department starting in April announced they would use their discretion and not overrule such state-level legalizations.
Since a 1986 Reagan-era executive order, however, using marijuana — even if legal on a state level — disqualifies a person from employment with the federal government.
What the bill does
The Fairness in Federal Drug Testing Under State Laws Act [H.R. 6589] would prevent a federal employee from being fired solely for using marijuana legally according to their state laws.
The bill also contains a provision exempting the provision from those seeking a top-secret level government clearance. In that case, using marijuana could still disqualify you.
Another provision notes that using marijuana is still cause for firing if an employee is found to be drug-impaired while on the job. (In other words, do it at home, not at your workplace.)
It was introduced in late July by Rep. Charlie Crist (D-FL13). Interestingly, Crist’s home of Florida has not legalized marijuana for recreational purposes, although they did for medical purposes in 2016.
What supporters say
Supporters argue that the legislation allows the federal government to hire and retain otherwise-qualified applicants, who run afoul of archaic federal laws that — in virtually every other respect — are being superseded by their state law. Supporters also frame their law in terms of its help for veterans.
“Medical marijuana is an issue of compassion, and in the veterans’ community, access is even more important as more and more veterans are turning to cannabis to address chronic pain and PTSD,” Rep. Crist said in a press release. “At the same time, the federal government is the largest employer of veterans; however, private cannabis use even in states that have legalized medical marijuana is prohibited in these positions.”
“Our bipartisan bill would protect federal employment for those in compliance with their state’s cannabis laws,” Rep. Crist continued. “Because our veterans shouldn’t have to choose between treatment options or job opportunities.”
What opponents say
Opponents counter that violating federal law, however innocuous or minor that law might be, seemingly reflects a broader lack of submission to federal laws at large — the primary responsibility of a federal government employee.
“Drug involvement can raise questions about an individual’s reliability, judgment, and trustworthiness or ability or willingness to comply with laws, rules, and regulations,” Office of Personnel Management then-director Katherine Archuleta wrote in 2013, “thus indicating his or her employment might not promote the efficiency or protect the integrity of the service.”
“Federal law on marijuana remains unchanged,” Archuleta continued, a statement true in 2018 as it was in 2013. “Marijuana is categorized as a controlled substance under Schedule I of the Controlled Substance Act. Thus knowing or intentional marijuana possession is illegal, even if an individual has no intent to manufacture, distribute, or dispense marijuana.”
Odds of passage
The bill has attracted one cosponsor, from across the aisle: Rep. Drew Ferguson (R-GA3). It awaits a potential vote in the House Oversight and Government Reform Committee.
The current ban was established in 1986 by executive order, so could the status quo be reversed by a presidential executive order as well? President Trump did say in June that he would “probably” support lifting the federal ban on marijuana, although that was in a three-sentence reply specifically in response to a reporter’s question. The administration has taken no public policy action on the topic.
