Way back in 2015, the Office of Personnel Management (OPM) issued this guidance to federal agencies:
Federal law on marijuana remains unchanged. 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. In addition, Executive Order 12564, Drug-Free Federal Workplace, mandates that (a) Federal employees are required to refrain from the use of illegal drugs; (b) the use of illegal drugs by Federal employees, whether on or off duty, is contrary to the efficiency of the service; and (c) persons who use illegal drugs are not suitable for Federal employment.
Today, just as OPM previously stated in guidance to agencies, “Federal law on marijuana remains unchanged”.
“Don’t stand in the doorway, don’t block up the hall”
What has changed is the OPM guidance. Congress could, of course, change the law regarding the use or possession if it wished to do so. Congress has not seen fit to make the change thus far.
Changing the guidance to the federal government, therefore, gets tricky as getting new laws passed is difficult and time-consuming. OPM now appears to be looking for alternative ways to make a change.
So, with regard to the federal workforce, “the times they are a’changin'”. As lyricist Bob Dylan wrote:
Come senators, congressmen, please heed the call
Don't stand in the doorway, don't block up the hall
For he that gets hurt will be he who has stalled
The battle outside ragin'
Will soon shake your windows and rattle your walls
For the times they are a-changin'
So, while OPM has changed, Congress has not. Perhaps Bob Dylan was prescient. He advised the elected representatives, “Don’t stand in the doorway, don’t block up the hall”. Perhaps in OPM’s view, these recalcitrant officials are just standing in the way of the changing times.
Getting Around Federal Law and Restrictions
According to new guidance from the federal government’s personnel agency, the new administration has found a way to get around the inconvenience of a federal law perhaps because “the times they are a-changin'” and many states have already kept up with our cultural changes more than the federal government.
Last week, Acting OPM Director Kathleen McGettigen told federal agencies the new OPM “guidance is to provide updated guidance on agencies’ consideration of how an individual’s marijuana use may or may not adversely affect the integrity or efficiency of the Government and thereby impact their suitability or fitness for a position.”
Using illegal drugs can be a factor in hiring a new federal employee or retaining a person as an employee of the federal government. As noted in the OPM guidance, “Marijuana continues to be categorized as a controlled substance under Schedule I of the Controlled Substances Act (CSA); federal law on marijuana remains unchanged.”
Emphasizing the existence of restrictions on drugs, including marijuana, is not the purpose of the latest guidance. Instead, the guidance is essentially advising agencies on how to get around the restrictions regarding marijuana and federal employment.
An agency’s determination of a person’s suitability for federal employment can be implicated by two factors when a person uses or possesses marijuana:
- illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and
- criminal or dishonest conduct.
And, a warning to agencies: “OPM’s suitability regulations do not permit agencies to automatically find individuals unsuitable for federal employment based on either factor.” Instead, agencies are being directed to assess “the impact, if any, to the integrity and the
efficiency of the Government.”
To put all this into perspective, the new directive to federal agencies from Acting Director McGettigan states:
I am responsible for issuing standards and guidance to agencies to ensure that
appropriate suitability determinations are made on applicants and appointees for positions in the competitive civil service….I am also responsible for issuing guidance to agencies on maintaining a Drug-Free Federal Workplace.
Political Appointees and Marijuana Use
The new guidance to federal agencies on making suitability determinations for federal employees coincides with new guidance from the White House. According to a report from NBC News, “The Biden administration is issuing new guidelines…to address an unexpected hurdle it faced as it aimed to quickly fill key White House positions: recreational marijuana use.”
A White House official reassured the public that the new guidelines would “effectively protect our national security while modernizing policies to ensure that talented and otherwise well-qualified applicants with limited marijuana use will not be barred from serving the American people.”