It was the marijuana enthusiast’s “shot heard ‘round the world:” a new law taking effect in California this year that heralded high times for smokers and tokers everywhere.
Yet the last vestiges of marijuana stigmatization – employer resistance and drug testing – Assembly Bill 2188 was supposed to eradicate proved to be but a hazy mirage for employees of some industries; most notably, federal employees and contractors.
Impact on Clearance Holders
As it turns out, the devil is once again in the details. While it is true that California employers with five or more employees are now barred under state law from discriminating against an applicant or employee based on off-duty cannabis use away from the workplace, the law “does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance.”
The law also doesn’t apply to employers that must meet testing or employment requirements of any other state or federal laws that are inconsistent with the new law, including federal funding, licensing, and contracting laws.
These carve-outs were necessary to ensure the law passed muster with the courts. Even readers without a law degree may recall some basic principles from high school history, including the notion of federalism, which stems from the Constitution’s Supremacy Clause and the Tenth Amendment. In a nutshell, the problem with a law lacking these carve outs would be this: federal law continues to categorize marijuana as a Schedule 1 controlled substance, meaning that it is deemed to have no legitimate medicinal purpose, is addictive, and is illegal to use, sell, grow, or distribute. At the same time, Executive Order 12564, the Federal Drug-Free Workplace Policy, remains in effect for federal employees, and most government contracts contain provisions mandating drug-testing of contractors and termination in the event of a positive test.
Federal Law Always Wins
All of this is to say that when federal and state laws conflict, federal law prevails. A state law purporting to include federal employees and contractors in a blanket prohibition on employer discrimination against off-duty employee cannabis use would be patently unconstitutional. Say what you will about lawyers, they come in handy when trying to write a law that sticks.
As I write this, I can almost hear the deflated groans of some readers who may have heard talk of the new legislation, failed to conduct their own due diligence, and celebrated prematurely. Knowing federal employees and contractors as well as I do, I imagine some readers outside of California celebrating over the presumption that it was only a matter of time before other states followed California’s lead.
If that’s you, and if the celebration included some, shall-we-say “organic” material, be mindful of the fact that a positive drug test can spell major problems for obtaining or retaining a security clearance. Despite the loosening of some restrictions on past marijuana use for pre-hiring suitability determinations, federal agencies still take a strict approach toward recent marijuana use and security clearances. And under the Bond Amendment, a current user of any illegal drug, including marijuana, is categorically barred from holding a security clearance.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
