For many years, security clearance applicants have completed Standard Form (SF) 86 to initiate the required background investigation. Although the form has seen periodic updates – most notably, to the mental health questions – it has asked the same questions regarding applicant drug use for decades.
That will soon be changing thanks to a major overhaul of the vetting process that merges the SF-86 with its sister forms SF-85 and SF-85P into a new “Personnel Vetting Questionnaire” (PVQ). The new PVQ, which was approved by the Office of Management and Budget in December 2023 and will be rolling out across government this year, separates the drug use questions into two categories “in recognition of changing societal norms”[1]: (a) cannabis and cannabis derivatives (e.g., CBD), and (b) other illegal drugs. “In addition, the PVQ has a more limited scope of questioning regarding past use of marijuana in comparison to other illegal drugs.”[2]
While both changes might seem encouraging to marijuana enthusiasts, they appear to be a case of form over substance that should give applicants pause. I see three reasons for caution and will address each in turn:
First, the National Adjudicative Guidelines for Security Clearances – the standards against which all applicants are assessed – remain currently unchanged, as does the Federal Controlled Substances Act (CSA). The CSA lists marijuana as a Schedule 1 drug having a high potential for abuse and no accepted medicinal properties. Until and unless marijuana is delisted under the CSA and afforded different treatment under the Adjudicative Guidelines, merely asking about marijuana use as a separate question does not itself evidence a change in law or policy. In fact, even if marijuana is delisted from the CSA’s Schedule 1, use of the drug will still run afoul of the Adjudicative Guidelines as currently written due to the Guidelines’ dual focus on use of controlled substances and those that are legal but cause mental impairment. Security clearance legal practitioners encountered a similar problem in 2021 with a “clarifying guidance” memorandum from the Director of National Intelligence that deemed past marijuana use “relevant but not determinative” to security clearance adjudications. In practice, most agencies I encountered shrugged off the new language as unworkable considering the unchanged and contradictory language of the Adjudicative Guidelines.
Second, as I have also previously cautioned ClearanceJobs readers, use of even federally legal cannabis derivatives (i.e., those with a THC concentration of 0.3% or less by dry weight pursuant to the 2018 Agricultural Improvement Act) can result in a positive drug test that will jeopardize clearability. That is because no government agency regulates THC concentration claims in CBD products, leaving consumers at the mercy of sellers to accurately test and advertise the content of their product. Additionally, as some federal employees and contractors have discovered, taking enough “legal” CBD products can result in an accumulation of THC in the bloodstream that places the user over the threshold for a positive marijuana test. Industry group The Intelligence and National Security Alliance alluded to these problems in a 2023 public comment on the proposed PVQ, but it remains unclear at the time of this writing the extent to which recommended cautionary warnings will be communicated to applicants.
This brings us to the third and perhaps most problematic reason for caution: a federal law known as the Bond Amendment. The Bond Amendment prohibits federal agencies from granting a security clearance to anyone currently using or addicted to an illegal drug, including marijuana. Federal agencies have generally interpreted “current” to mean any use of an illegal drug within the last year. But some reports indicate that the new PVQ will shorten the reporting period for past marijuana use to only 90 days. If true, this disparity between the wording of the questions and applicable law/policy stands to give applicants a false impression of reality. While some agencies may put blinders on and conform their scope of applicant and reference questioning to the new questions, other variables will remain. For example: will agencies that ask broader or different questions during polygraph examinations also adjust accordingly? Will unsolicited information about past marijuana use from references or applicants be ignored?
Such scenarios are inevitable and invite divergent opinions among agencies like those that occurred following the 2021 ODNI “clarifying guidance.” Applicants should not be distracted by changing scope of questions and should instead follow existing law and policy – until and unless those also change.
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.
[1] Notice of Submission for a New Information Collection Common Form: Personnel Vetting Questionnaire (November 23, 2022). 87 FR 71700.
[2] Id.
