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Legal Insider: Federal government adjusts position on marijuana

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLCan employment and labor law firm located in Northern Virginia specializing 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, suggest that federal employees, applicants and clearance holders will be treated differently when it comes to past marijuana use. It is important to note at the outset that while these changes suggest that past use of marijuana may not be the barrier to employment or clearance that it once was, the federal government still does not authorize the use of marijuana. approve or not accept. by current employees or clearance holders.

Federal government changes to marijuana policy

In the most recent wave of elections held across the country, marijuana was once again a focus in several states. As a result of recent 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.

It 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 buy and use marijuana in 21 states, marijuana remains classified as a Schedule I drug on the Controlled Substances Act. This means that the use of cannabis can still be a disqualifying factor for anyone applying for a security clearance or trying to enter federal service.

Along with the continued passage of laws legalizing the substance at the state level, the federal government has begun to undertake efforts to change its stance on marijuana.

For example, on December 21, 2021, Director of National Intelligence (DNI) Avril Haines issued an unclassified memo to agency heads, which was “designed to provide clarifying guidance to federal agencies charged with determining [security] eligibility by assessment,” following changes at 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 assessments, but not determinative.” However, employees are cautioned: “In light of long-standing federal law and policy prohibiting illegal drug use while holding a sensitive position or holding a security clearance, agencies are encouraged to advise prospective National Security Force employees that they refrain from any future must refrain from using marijuana at the start of the national security screening process.”
  • With regard to the use of CBD products, the use of these cannabis derivatives may be relevant for judgments in accordance with security regulations. Products containing more than a 0.3 percent concentration of delta-9 tetrahydrocannabinol (THC) do not meet the definition of “hemp.” As a result, products labeled as hemp-derived that contain more than 0.3 percent THC still meet the legal definition of marijuana, and thus remain illegal to use under federal law and policy.
  • An adjudicator’s determination of an individual’s eligibility for access to classified information or eligibility to hold a sensitive position may be adversely affected if that individual knowingly and directly invests in stocks or businesses specifically related to marijuana growers and retailers while cultivating and distribution of marijuana remains illegal under the Controlled Substances Act.

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

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 an upcoming 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 if it will pass 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 used to determine the trustworthiness of federal employees in positions of trust or to require access to classified information. One area where significant changes are suggested relates to past drug use, specifically past use of marijuana. The changes appear to implement many of the guidelines contained in the December 2021 Memo and, if adopted, could signal a significant change in position by the federal government related to past use of marijuana.

What federal employees and clearance holders need to know

Overall, the DNI guidance outlined in the December 2021 memo appears to increase the prospects of approval for security clearance applicants who have previously 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 aware of the fact that the use of marijuana remains illegal under federal law. This means that such individuals should continue to avoid using the substance, verify CBD products for THC concentrations, and avoid investing in cannabis businesses.

One point is clear: for those interested in seeking federal employment or obtaining (or maintaining) a security clearance, it remains a good idea to cease involvement in anything related to marijuana. While an applicant’s past conduct will not automatically disqualify her from being considered suitable for federal employment or from obtaining a security clearance, the provisions will continue to consider past involvement with marijuana, even if it is on a more limited base.

If you are an employee in need of employment law representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook and Twitter.

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