Legal Weed for Feds – What Does That Mean for Clearance Holders?

This is Sean Bigley and Lindy Kyzer of ClearanceJobs.com, and we’re talking this segment about another new proposal to legalize weed for feds. Lindy, I don’t know about you, but I feel like every year for the last five or six years, I see this at least once, where there’s some new law that’s being, I guess, attempted to be passed and the media jumps on it and it sounds like it’s happening and then it never does. Am I totally going crazy here? This seems like it’s reincarnated every year.

Every year, yeah. I think there’s just enough lobbying elements out there. People that are pushed, the legislation is going to get reintroduced and it comes with different various nuances around it. But what I always feel is it’s really kind of doesn’t address the broader issue, which is that marijuana remains illegal at the federal level. So they’ve tried to kind of splice and dice it different ways, even from a policy perspective. The intelligence community has done this through ODNI releasing clarifying guidance around drug use. But again, a lot of the legislation I think is trying to chip away at it, trying to change the prohibitions around how pre-employment marijuana use is considered. But all of those really feel like stopgaps for saying, ‘Hey, we need to address this more broadly at the federal level in terms of the legality of it with all the states that are making it legal.’ That’s just the bigger issue that we have, and until federal law changes, but these one-off policies, I would not consider myself covered. And that’s what I frequently say. Even if you see some announcement or read some article that says, oh, employment law has changed, I would still make sure I was very carefully guarding what the agency I’m applying for requires. Otherwise I still might find myself in a situation where I have used drugs even in the past, and it could be an employment or an application issue. Am I understanding that correctly?

Yeah, so I mean, I think it’s important to clarify for people because when I read some of this stuff, these news releases and things like that, it kind of implies the law is being changed and it’s really, it’s an attempt, it’s a hope to change it. Just because a member of Congress introduces a bill doesn’t mean it’s going to get passed. Obviously, we all kind of think back to Schoolhouse Rock, which my kids are going through now, where a bill on Capitol Hill and that whole little thing brings back memories of fourth grade. That’s the reality. It is 400 and some odd members of Congress. They all introduce a flurry of bills every year, and only a handful of them actually make it into law. This strikes me as another one of those that’s destined for the dust bin. You mentioned states, and I did a little bit of digging, and it turns out as of our recording date, there are 38 states that have legalized marijuana for medicinal purposes.

Twenty-three have legalized it for recreational purposes. And so when I was in law practice defending government employees and contractors in security clearance denial cases, oftentimes they would come to me very angry and indignant and say, I don’t understand how I’m being denied. I use this, it’s legal in my state. What’s the problem? And I would have to explain to them essentially what you were just alluding to, which is that it doesn’t matter. It’s still illegal federally, whether or not the federal government enforces that criminally is a whole other ball of wax. Spoiler alert, they don’t really, or at least they haven’t for many years when it comes to employment, that’s totally different, and they are still very, very aggressive on this issue. I actually field in a number of media questions when President Biden came into office about ‘how is this going to be a sea change? It sounds like he’s loosening restrictions for federal employees.’

And I had to say, no, actually that’s not the case. There was a lot of confusion about this policy memorandum that came out from the director of the Office of Personnel Management that was kind of instructing agencies to be a little bit more lenient when it came to past marijuana use, but from a security clearance standpoint that had really no bearing at all. And so there’s these kind of two layers to the hiring process, both for contractors and for federal employees of suitability or contractor fitness. It’s sometimes called and security clearance. And just because the reigns have been loosened on, one doesn’t automatically mean the other. One thing though that I actually thought was kind of a little weird or a little entertaining, I looked up the press release from this Cure Act bill that was put out co-sponsored by representatives Raskin and Mace.

(05:03)
The one that Raskin put out had a quote in it from somebody from the Drug Policy Alliance, which is a pro-marijuana industry group. The quote is, DPA is excited to support legislation that can help end another pillar of the drug war and allow individuals to secure work penalizing someone for drug use relies on an assumption that any drug use is problematic and that people who use drugs cannot be responsible employees. We know this is false. I was sort of perplexed when I read that because I thought, I think most people hear drug users and that’s exactly what they think is irresponsible. So I don’t know that we’re really doing a good job of selling this guys, if that’s the goal. I don’t know. What do you think?

I do think there is this movement to say, Hey, what is the difference between drug use and alcohol consumption? And I do think that’s where they have their biggest argument in saying if we’re looking at this as a user perspective, are we just penalizing people who maybe use marijuana or use different drug substances in a different way? That is the way it has been. I don’t think you reduce the stigma that over time, and I do think there is something that needs to shift and maybe seeing positive benefits of marijuana use for a medicinal purpose. I feel like there have been inroads made in that arena, at least in some senses within especially the DOD community around family members. I have seen positive examples of cases through Doha or individuals who have had a family member who was using marijuana for medicinal use cancer, some form of treatment.

(06:39)
And as a therapeutic, I have to say, I would be in favor of that, and I appreciate that there is enough policy nuance to say, ‘Hey, if your family member is using that as a part of a treatment plan, we’ll allow for that.’ But obviously then it gets very squishy in terms of the crossover for the security clearance holder applicant themselves. This is how I know I’m getting old, Sean. We talked about my age a lot the last time we recorded, it’s coming back because I feel a little bit more in the gray area of this too. But just when you have deal on the extremes that say, Hey, no drug use should be stigmatized, and the other people on the other side, we have this in my state of Nebraska right now, Nebraska is like hard line, no drugs. We don’t do drugs in Nebraska.

(07:21)
That’s not what we’re about here. Very different than your California. And there’s just been a huge push to get medicinal marijuana legalized. And they have just said very staunchly, no, a big push has been like there is no medicinal use of marijuana. I pushed back on that. Why do we have all of these extremes around it, especially us poor Nebraskans have Colorado right next door, and it’s pretty much the Wild West over there. So it is a tough issue around the black and white of it. And that’s why I feel like, unfortunately the legislation that I see only makes things more squishy because it’s just kind of moving the needle a little bit on saying, how are we considering this in the employment process? Until we actually do something at the federal level and change that, then all of this is pretty irrelevant. And if I was a security clearance holder applicant, I would still be touting the ‘Just Say No’ line.

Yeah, I agree. And I mean, the other piece of this, I mean, obviously this particular act is written in a way that is trying to target this specific issue of security clearances and federal employees with marijuana use. Let’s just say in the abstract that marijuana gets delisted from the controlled substances schedule or legalized federally, essentially, you still then have this other issue of potentially federal agencies saying, well, that’s nice that it’s legal, but we still consider it to be a mind altering substance vis-a-vis alcohol in excess or sniffing glue in a bag or whatever. And so if that’s the case, then we’re not going to allow it. And a great example of this is the CBD sort of drama that we’ve seen recently where it was legalized federally up to a certain concentration and then DOD for military members and DHS for the Coast Guard immediately turned around and said, we’re still making this a violation of the UCMJ to use it at all, even if it’s federally legal.

(09:15)
And so I’m just not confident or convinced, I guess, that even if marijuana was legalized federally, that people in the personnel security community wouldn’t find some way to sort of push back on that and end run around the legislation vis-a-vis some administrative rulemaking or something like that. So I agree with you. The bottom line I think is I wouldn’t get too excited about these announcements. If you’re seeing these things and you’re a federal employee or you’re a contractor or you want to be, I would take them all with a grain of salt because I don’t see this changing anytime soon.