Federal employers could significantly boost the pool of available talent if prohibitions against marijuana use were removed, according to a trio of bipartisan lawmakers.
Reps. Jamie Raskin, D-Md.; Nancy Mace, R-S.C.; and Earl Blumenauer, D-Ore., introduced the Cannabis Users Restoration of Eligibility (CURE) Act, which would prevent prior or current marijuana use from becoming grounds for not being offered federal employment or not receiving a security clearance.
The CURE Act would also allow someone who has previously been denied a security clearance or a federal job based on marijuana use the chance to have that denial reviewed.
The legislation would establish a review process for all people denied employment with the federal government due to marijuana use dating back to 2008.
“Every year, qualified and dedicated individuals seeking to serve our country are unable to secure federal jobs and security clearances because the federal government has not caught up with the widely established legal use of medical and recreational cannabis,” Raskin said. “I am proud to partner with my friend, Rep. Mace, to introduce the bipartisan CURE Act that will eliminate the draconian, failed and obsolete marijuana policies that prevent talented individuals from becoming honorable public servants in their own government.”
The bill has been referred to the House Committee on Oversight and Accountability.
“The legislation attempts to bring the federal government and its views on marijuana use as a condition of employment more in alignment with the states and localities,” said Eric B. Meyer, an attorney in the Philadelphia office of FisherBroyles. “With legalization in the states, there is a recognition that people are allowed to use cannabis, so employers shouldn’t penalize them in the workplace. The bill recognizes that people use marijuana in Washington, D.C., where it is legal to do so, and wish to work for the federal government. It’s really no different at this point for many people than consuming alcohol off the clock.”
Danielle Dwyer, an attorney in the Philadelphia office of Duane Morris, agreed that the bipartisan introduction of the bill shows that marijuana is becoming more acceptable and mainstream and that lawmakers on Capitol Hill are taking notice. However, she added, “the CURE Act has a way to go before it becomes law, and it is likely to meet significant resistance along the way.”
The legislation is supported by a variety of groups advocating for the federal decriminalization of cannabis.
“This bill will expand job opportunities for individuals, and that’s great news,” said Maritza Perez Medina, director of the Office of Federal Affairs for the Drug Policy Alliance, an advocacy organization in Washington, D.C. “Getting this legislation passed into law will do away with one pillar of the drug war that locks people out of life-changing opportunities. This is a small but meaningful step to undo other harmful consequences that stem from marijuana prohibition.”
Background
Thirty-eight states and the District of Columbia currently allow the medical use of marijuana, and 23 states have legalized recreational marijuana. Numerous employers have also opted to remove marijuana from pre-employment drug screening programs. But the drug is still considered illegal at the federal level, classified as a Schedule I substance under the Controlled Substances Act.
“Although several states have relaxed their stances on marijuana and, in turn, protected employees’ lawful off-duty use of marijuana, employees—and often contractors—of the federal government are usually excluded from these protections,” Dwyer said. “Marijuana remains unlawful, without exceptions. But the federal government is starting to take steps towards softening its stance on marijuana, which may be welcomed news to many considering that the federal government is the largest employer in the United States.”
“Enlarging the talent pool is behind the decision a lot of employers are making not to drug test, even in states where marijuana is still prohibited,” Meyer said. “These employers would rather not know, unless it is related to a safety-sensitive position or the employer is a federal contractor or somehow regulated by federal or state government.”
The Office of Personnel Management in 2021 issued guidance clarifying that past marijuana use shouldn’t automatically preclude federal applicants or appointees from most government jobs.
The Biden administration also announced a blanket pardon to people convicted of simple possession of marijuana under federal law and further announced that it would review the scheduling of marijuana under the Controlled Substances Act.
Also in 2021, the Office of the Director of National Intelligence issued a memo to intelligence agency heads clarifying that while past cannabis use “remains relevant” to the security clearance process, it should no longer be “determinative” and automatically lead to rejection.
Further Considerations
The legislation does raise a variety of questions about implementation. “The CURE Act is silent about marijuana use at work—I’m assuming that would not be allowed, as is the case in every state,” Meyer said. “There’s nothing in the bill about drug testing, there’s nothing in there for what happens when a federal employer reasonably suspects that an employee is under the influence of marijuana, there’s no mention of safety-sensitive positions. Those areas would have to be ironed out.”
Kathleen Smith, an expert on the security clearance process and chief marketing officer for ClearedJobs.Net, said that if the bill does pass, a lot of procedural issues around security clearances would have to be worked out, as well.
“There are so many different agencies who adjudicate security clearances, and they each have their own protocols,” she said. “There are clearances for the intelligence community and law enforcement and other agencies—and protocols will differ based on the mission the agency supports.”
There’s an investigation process to work through, as well, she said. For example, during a security clearance investigation, people other than the candidate are interviewed about aspects of the candidate’s life. “Just like with alcohol abuse, someone may say, ‘I’ve seen that person stoned, and they were not acting responsible.’ ”
Smith hasn’t heard much reaction about the proposal from the cleared employer community, which is likely waiting for it to get closer to becoming law before commenting on it, she said. But people interested in obtaining a security clearance have been talking about the prohibition on marijuana for years.
“People are angry about not being able to get cleared because they are a recreational user and they will say that ‘My state allows me to use cannabis, why can’t I get a clearance?’ ” Smith said. “People are not just emotional about the issue, there is also a lot of confusion about marijuana being legal at the state level and illegal at the federal level.”
Smith said that those candidates should understand that the prohibition “is a national security issue, not about penalizing people for lifestyle choices. Drug use is investigated because it makes people vulnerable to being persuaded to compromise national security, just like credit card debt, alcohol consumption or irresponsible social media use.”
H/T: www.shrm.org
