Should Federal Workers be Allowed to Use Weed in States Where it’s Legal? (H.R. 6589)

What is H.R. 6589?

(Updated November 19, 2019)

This bill — known as the Fairness in Federal Drug Testing Under State Laws Act — would prohibit marijuana metabolite testing from being used as the sole factor to deny an individual federal employment or terminate an existing federal employee as long as the individual is in compliance with the marijuana laws in their state of residence.

This bill would only extend to an individual’s past, private use of cannabis, and doesn’t prohibit probable cause testing if an individual is believed to be under the influence at work. It also doesn’t apply to individuals occupying or seeking positions that require top-secret security clearances.

The Office of Personnel Management (OPM) would be responsible for drafting regulations to implement the new rules.

Argument in favor

The blanket ban on federal employees smoking marijuana no longer makes sense when 46 states have enacted laws that are in direct conflict with the federal Controlled Substances Act. Additionally, the marijuana ban disproportionately affects veterans, who are more likely than the general population to use medical marijuana.

Argument opposed

While individual states may have their own laws governing marijuana use, the fact remains that marijuana is illegal at the federal level. It’s a fireable offense for federal employees to violate federal laws of all sorts, and if those employees don’t want to be held to a higher standard they don’t have to work in the federal bureaucracy.

Impact

Residents of states with legal marijuana; marijuana users; individuals seeking federal employment; federal employees; veterans; veterans seeking federal employment; medical marijuana users; and the Office of Personnel Management.

Cost of H.R. 6589

A CBO cost estimate for this bill is unavailable.

Additional Info

In-Depth: Rep. Charlie Crist (D-FL) introduced this bill to protect veterans’ treatment options and federal employment opportunities:

"Medical marijuana is an issue of compassion, and in the veterans' community, access is even more important as more and more veterans are turning to cannabis to address chronic pain and PTSD. At the same time, the federal government is the largest employer of veterans; however, private cannabis use even in states that have legalized medical marijuana is prohibited in these positions. [This] bill would protect federal employment for those in compliance with their state's cannabis laws. Because our veterans shouldn't have to choose between treatment options or job opportunities."

Current rationale for requiring all federal employees to be drug-free is stems from a 1986 executive order from President Ronald Reagan. Executive Order 12564 “expressly states that use of illegal drugs on or off duty by federal employees in positions with access to sensitive information may pose a serious risk to national security and is inconsistent with the trust placed in such employees as servants of the public.”

Danica Noble, a federal attorney of almost 10 years, advocated strongly for allowing federal employees to smoke marijuana in a 2015 Wired op-ed in which she argued that many otherwise highly qualified candidates for federal employment are disqualified by an outdated view on marijuana:

“FBI Director James Comey said that the policy against hiring anyone who has smoked marijuana in the last five years has crippled our ability to prepare for cyber-attacks. He said all the best candidates are disqualified by this policy… [Recently,] Representative Gerry Connolly of Virginia offered an amendment that would require a congressional report on how marijuana’s status as a Schedule 1 drug is affecting our nation’s security, specifically whether it disqualifies the most efficient, productive, and suitable candidates.”

This bill is supported by Americans for Safe Access, Florida for Care, Marijuana Policy Project, National Cannabis Industry Association, NORML, Veterans Cannabis Coalition, and Weed for Warriors Project. NORML Political Director Justin Strekal says:

"The time for the federal government to end the practice of arbitrarily discriminating against current and potential workers for marijuana consumption is now. With 46 states having reformed their cannabis laws to be in direct conflict with the federal Controlled Substances Act, individuals acting in compliance with state law should not be denied the opportunity to serve their country as public servants.”

Past legislation seeking to address the gap between federal and state marijuana laws has been largely unsuccessful, with many bills dying in committee. Guidance issued by the Office of Personnel Management in May 2015, shortly after the District of Columbia legalized marijuana use, reminded agencies and their employees that “federal law on marijuana remains unchanged” and that persons who use illegal drugs are “not suitable for federal employment.”

Just last year, U.S. Transportation Secretary Elaine Chao reminded employees of her agency that even medical marijuana patients have no excuse for failing a drug test:

“It has always been the intent of this program to follow the [Controlled Substances Act] regarding what constitutes a legally valid prescription. The term 'prescription' has become more loosely used in recent years. Some state laws allowing marijuana use the term 'prescription' [however most use "recommendation" because cannabis isn't FDA-approved], even though a recommendation for someone to use marijuana under state law is not a prescription consistent with the Controlled Substance Act."

There is one cosponsor of this bill, who is a Democrat.

This bill builds on a narrower amendment introduced by Rep. Crist earlier this year, which sought to protect military veterans who work for the Department of Veterans affairs from being fired for state-legal marijuana use. That amendment failed when GOP House leaders blocked it from receiving a floor vote.

Of Note: Since 1986, the Federal Drug-Free Workplace Program has prohibited all civilian employees at executive branch agencies from using federally illegal substances on or off duty. Medical marijuana is currently legal in 31 states, D.C., Puerto Rico, and Guam, and 46 states have some form of medical marijuana law — however, it remains illegal under federal law and therefore, federal employees can be denied employment or terminated due to testing positive for marijuana metabolites even if their use is in compliance with state law.

The conflict between state and federal laws limits treatment options and federal employment opportunities among veterans in particular, who comprise approximately one-third of the federal workforce and whose medical cannabis use to treat chronic pain and PTSD has been found to be double the rate of the general public. A recent American Legion poll found that one in five veterans use marijuana to alleviate a medical condition.

Veterans have many special skill sets that various federal agencies rely on, and this bill ensures that agencies do not miss out on qualified veterans because of necessary medical marijuana use.

Media:

• Sponsoring Rep. Charlie Crist (D-FL) Press Release
  
• Veterans Cannabis Coalition Letter (In Support)