Recognizing that state medical and recreational marijuana laws are sweeping the nation, and that a recent survey reflected that nearly half of surveyed American adults have used marijuana, the Acting Director of the U.S. Office of Personnel Management (OPM) issued a memorandum regarding “Assessing the Suitability/Fitness of Applicants or Appointees on the Basis of Marijuana Use; Maintaining a Drug-Free Workplace.” In it, Acting Director Kathleen M. McGettigan offered guidance to deal with the problem of federal agencies “increasingly encountering individuals whose knowledge, skills, and abilities make them well-qualified for a position, but whose marijuana use may or may not be of concern when considering the suitability or fitness of the individual for the position.”

Generally speaking, in determining whether an applicant is suitable or fit for a particular government agency job, current regulations state that agencies must base their suitability determinations on the presence or absence of certain factors set forth in those same regulations. No factor is automatically disqualifying. Thus, the agency must conduct a case-by-case assessment to determine the impact, if any, the conduct at issue might have on the integrity and efficiency of the federal government. In conducting this assessment, the agency must consider:

  • the nature of the position for which the person is applying or in which the person is employed;
  • the nature and seriousness of the conduct;
  • the circumstances surrounding the conduct;
  • the recency of the conduct;
  • the age of the person at the time of the conduct;
  • any contributing societal conditions; and
  • the absence or presence of rehabilitation or efforts toward rehabilitation.

The two factors in the federal regulations that might be implicated when an applicant uses or possesses marijuana are: (1) illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and (2) criminal or dishonest conduct. According to the Acting Director:

  • Prior marijuana use is not automatically disqualifying: “[I]t would be inconsistent with suitability regulations to implement a policy of finding an individual unfit or unsuitable for federal service solely on the basis of recency of marijuana use.” In fact, even where a person has illegally used marijuana without evidence of substantial rehabilitation, agencies cannot find that person unsuitable unless there is a nexus between the conduct and the “integrity or . . . efficiency of the service.” Again, consideration should be given to the factors outlined above. And someone who used marijuana, but no longer does so, should be viewed differently than someone currently using. When considering an applicant who used in the past, consideration should be given to the nature and seriousness of the use, the nature of the position, and any rehabilitation efforts (including, but not limited to, evidence that use will not occur again, passage of time, participation in or completion of treatment or counseling, and a commitment to refrain from using in the future).
  • Agencies should exercise care before making a determination of unsuitability for criminal conduct based on marijuana possession, including a review of the above factors. Again, agencies must consider whether employment of an individual with a criminal history related to the possession of marijuana would adversely impact “the integrity . . . or efficiency of the service.” Depending on the situation, a conviction for marijuana possession might not be incompatible with employment in the position sought.

Setting these scenarios aside, the memorandum concluded with a reminder that federal employees remain subject to E.O. 12564, Drug-Free Federal Workplace, which requires federal employees to refrain from the use of illegal drugs and recognizes that persons who currently use illegal drugs are not suitable for federal employment. Moreover, regardless of the passage of state and local marijuana laws, “[h]eads of agencies are expected to continue advising their workforce that [these state and local efforts] . . . do not alter Federal law or Executive Branch policies regarding a drug-free workplace.” Importantly, federal agencies cannot ignore an employee who disregards federal law as it relates to marijuana while working for the federal government. That said, the E.O. provides that agencies are not required to discipline current employees if they seek counseling or rehabilitation and stop using illegal drugs. Indeed, it is federal policy to offer such treatment and programs to government employees.

While the memorandum is limited to employment with federal agencies, it reflects a shift in how the federal government views consideration of a drug that remains illegal as a matter of federal law.