Ask The Lawyer

By Debra Roth

No ‘high times’ for federal employees

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With the legalization of marijuana for recreational use by the states of Colorado and Washington, and the growing number of states (and the District of Columbia) that have legalized the drug for medical purposes, there’s discussion among the federal workforce wondering how this affects them. What I typically hear is: “if it’s legal for me to smoke marijuana on vacation in Colorado, how can the federal government come after me for it?”

The answer is quite simple. Since 1970, marijuana has been a Schedule I substance under the federal Controlled Substances Act and it remains so today. That means any use of marijuana is illegal under federal law, regardless of state law. As a federal employee, yes you must comply with federal law or suffer job consequences.

Whether and how the federal government chooses to enforce the federal criminalization of marijuana is also irrelevant to your federal employment, as long as it remains covered by the Controlled Substances Act. This is due to a 1986 Executive Order (EO 12564) issued by then-President Reagan, which mandates the federal workplace as a drug free workplace. Specifically, Section 1 of the Executive Order 1) requires federal employees “to refrain from the use of illegal drugs,” 2) establishes that “the use of illegal drugs by Federal employees, whether on duty or off duty, is contrary to the efficiency of the service,” and 3) holds that “persons who use illegal drugs are not suitable for Federal employment.”

So even if your federal position does not require a security clearance or subject you to random drug testing, use of an illegal drug by a federal employee is prohibited. This prohibition means that a misconduct action could be taken against you for on- or off-duty marijuana use, and such use can adversely affect a determination on whether you are “suitable” for federal employment.

Expect also to place your security clearance in jeopardy for current and future recreational use in a legalized state. It’s the federal government that issues security clearances, not the states. and intuitively you should know you must comply with federal law to obtain a clearance. Indeed, question 23 of the SF-86, Questionnaire for National Security Positions, the form every person must complete to be considered for a security clearance, requires you truthfully disclose whether “in the last seven (7) years have you illegally used any drugs or controlled substances? Use of a drug or controlled substance includes injecting, snorting, inhaling, swallowing, experimenting with or otherwise consuming any drug or controlled substance.” Marijuana is specifically listed. There are a series of sub-questions that ask about the time period and nature of your use, including whether your use occurred “while possessing a security clearance.” The form does not inquire whether your use occurred in a state where marijuana is legal. These inquiries should also serve to inform you how seriously the federal employer considers the use of marijuana for purposes of obtaining a security clearance.

And just to drive this point home, the government-wide adjudicative guidelines used to determine a person’s eligibility for a security clearance, list as Guideline 8 “Drug Involvement.” This guideline states the government’s concern with the “use of an illegal drug or misuse of a prescription drug” as raising questions about a person’s “reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person‘s ability or willingness to comply with laws, rules, and regulations.” For me, that’s all you need to know if you hold or intend to be issued a security clearance. What the government wants to know is your track record on complying with law, and federal law still prohibits the sale, distribution and use of marijuana.

In sum, with the benefits of federal employment comes the obligation to comply with federal law, which as of now, strictly prohibits use of marijuana.

Comments

  1. CLM Says:
    March 26th, 2014 at 2:45 pm

    But the people who are supported with my tax dollars from my hard work can smoke it legally or illegally without any consequences. America.

  2. Alicia G. Says:
    April 3rd, 2014 at 8:23 am

    This is utter BS. I am a federally sponsored employee. Why is it the Federal Government can recognize same sex relationships but if the state I live in does not, then a same sex couple cannot be married. Yet if the state I live in accepts marijuana as legal, and the federal government does not, I can’t smoke it? Why does the state have jurisdiction in one instance but not the other? This makes no sense.

    I hope someone challenges this.