Feds Want To Know If Workers Use Marijuana, State Laws Aside

By Tom Angell | April 14, 2017

The federal government wants to know whether its potential employees and contractors have recently used marijuana, even if it was in accordance with state law.

The U.S. Office of Personnel Management (OPM) filed a Federal Register notice on Friday to announce it is moving ahead with plans to add a clarification on background check forms spelling out that drug questions also “pertain to the illegal use of drugs or controlled substances or drug or controlled substance activity not in accordance with Federal laws, even though permissible under state laws.”

The changes concern drug use and sales inquiries on the Questionnaire for Public Trust Positions (Form SF 85P) and the Supplemental Questionnaire for Selected Positions (Form SF 85P-S), which currently appear as follows:

The supplemental form also asks about alcohol use.

In the new Federal Register notice, Kathleen M. McGettigan, OPM’s acting director, wrote, “Unlawful possession of marijuana, or marijuana abuse without evidence of substantial rehabilitation, can raise questions about an applicant’s or employee’s reliability, judgment, and trustworthiness or ability or willingness to comply with laws, rules, and regulations, thus indicating his or her employment might not promote the efficiency or protect the integrity of the service.”

She added that “from a credentialing perspective, an agency must evaluate whether an applicant’s or employee’s abuse of drugs may put people, property, or information systems at risk.”

The filing is a follow-up to a March 2016 notice in which OPM first announced the proposed drug question changes, among others.

Since the initial filing, the agency collected public comments, including one from the Electronic Privacy Information Center (EPIC), which noted that a growing number of states are changing their cannabis laws, arguing that “requiring individuals to disclose their use of medical marijuana implicates significant privacy interests in medical information and treatment confidentiality.”

But the agency wasn’t swayed.

“OPM did not accept this comment because knowing or intentional possession of marijuana, even for personal use, is illegal under Federal law,” McGettigan wrote.

In the filing, she also referenced a May 2015 OPM memo, noting it advises that “an individual’s marijuana-related conduct must be evaluated on a case-by-case basis, and explaining that a suitability determination based on unlawful marijuana possession must include consideration of the nature and seriousness of the conduct, the circumstances surrounding the conduct, and contributing societal conditions.”

OPM’s clarification on state-legal marijuana activity is similar to changes that the Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF) recently made to Form 4473, which must be completed by people purchasing guns from licensed dealers.

That form has long asked, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

But beginning in January, the revised form adds a clarification noting that, “The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”

Both the ATF and OPM moves were initiated under the Obama administration.

OPM is accepting public comments on its new filing until May 15.

Tom Angell

Tom Angell is a senior political correspondent for MassRoots. A 15-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he serves as chairman of the nonprofit Marijuana Majority and is editor of the daily Marijuana Moment newsletter.

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