Although marijuana legalization efforts have abounded at the state level in recent years, the drug remains a controlled substance under federal law. Using, possessing, or cultivating marijuana – whether for medicinal or recreational purposes – continues to form the basis for many security clearance and employment suitability cases government-wide.

Nowhere has this historically been truer than at federal law enforcement agencies like the FBI, Secret Service, and DEA, all of which have especially stringent pre-hiring marijuana use policies for job applicants. These criteria are in addition to, and far more particular than, traditional security clearance standards or even general government-wide suitability criteria.

For example, traditional security clearance adjudicative guidelines give agencies broad leeway to determine whether the drug use was “recent” and whether the individual’s age and circumstances at the time of use mitigate the concern. The general federal employment suitability standards found at 5 C.F.R. 731.202 effectuate the same basic standard, requiring agencies to examine whether “substantial rehabilitation” has occurred and to take into account other factors like the individual’s age and the circumstances surrounding the conduct. Finally, a May 2015 memorandum from then-OPM Director Katherine Archuleta indicates that marijuana use should be considered on a case-by-case basis when evaluating suitability cases.

The FBI, however, implements a blanket policy of automatic disqualification for any job applicant who has used marijuana within the last three years – regardless of the reason, location, or legality in the applicant’s home jurisdiction. Similarly, the DEA authorizes only “limited, youthful” experimentation with marijuana in averting automatic hiring disqualification. And, the Secret Service has historically used a sliding scale to determine the required length of abstinence from marijuana based upon the applicant’s age. Applicants age 23 and younger were required to have a minimum of one (1) year’s abstinence, while those who were older required anywhere from 2-5 years’ abstinence.

Demand for Candidates Compels Agencies to Shift Course

Critics of federal hiring policies have argued that these agencies’ views of marijuana are outdated and form a needless impediment to hiring job candidates from the millennial demographic, many of whom use marijuana in their teens and 20’s only to abandon it upon entering the “real world”. To some extent, such criticism appears to be having the desired effect. The FBI actually relaxed its marijuana policy in 2007, moving away from a hard number cap on past instances of marijuana use. The Secret Service, desperate for increased manpower, recently followed suit by retiring the sliding scale approach and adopting the “whole person” perspective employed in security clearance adjudications throughout the broader U.S. government.

It remains to be seen whether this new Secret Service policy is a permanent attitude change or a temporary fix to low recruiting numbers at a time when the agency is desperate for more manpower. But whatever the long-term prospects may or may not be for relaxed marijuana policies, job applicants should keep in mind that the “whole person” approach to personnel adjudications isn’t a golden ticket to a badge, gun, and earpiece. The burden is still on the applicant to prove that past drug involvement is firmly in the past and poses no risk of either blackmail or current illegal behavior. That’s not always an easy hill to climb – especially when the period of use was significantly longer than the period of abstinence or the applicant is still associating with marijuana users.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com