A powerful congressional committee has released a report that urges federal agencies to reconsider policies that result in the firing of employees who use marijuana legally in accordance with state law.
The House Appropriations Committee approved the report and related spending legislation on Tuesday, which separately includes a provision to provide protections for banks that work with state-legal cannabis businesses and notably excludes a longstanding rider that has blocked Washington, D.C. from legalizing marijuana sales.
The employment language isn’t a part of the appropriations bill itself, but the directive included in the attached report expressing the views of the committee voices support for a recent Office of Personnel Management (OPM) memo to federal agencies that says admitting to past marijuana use should not automatically disqualify people from being employed in the federal government.
“The Committee supports the updated guidance on agencies’ consideration of how an individual’s marijuana use may or may not adversely affect the integrity or efficiency of the government and impact an individual’s suitability or fitness for a position,” the report attached to the annual Financial Services and General Government (FSGG) spending bill states.
It also calls on the federal government to further reevaluate employment policies that punish workers for cannabis conduct that is legal in their states.
“The Committee encourages OPM and the Suitability Executive Agent to continue to review these policies and guidelines regarding hiring and firing of individuals who use marijuana in states where that individual’s private use of marijuana is not prohibited under the law of the State,” it continues. “These policies should reflect updated changes to the law on marijuana usage and clearly state the impact of marijuana usage on Federal employment.”
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While not an explicit endorsement of loosening employment restrictions based on cannabis use, advocates view the call for reevaluation of currently strict policies as an implicit suggestion that federal agencies should revise their approaches to be more lenient toward workers or applicants who admit to consuming marijuana in legal states.
They are also happy about the banking- and D.C.-related provisions included in the spending bill itself.
“The FSGG appropriations package represents an opportunity to advance policies that promote cannabis freedom, economic justice and legal jobs by requesting the federal government to review their hiring guidelines, enabling cannabis banking and lifting the punitive D.C. Rider,” NORML Political Director Justin Strekal said.
The new language is similar to provisions included in reports approved by the Appropriations Committee in recent years.
Despite OPM’s updated guidance, published in February, the Biden administration came under criticism this year after it was reported that it had fired or otherwise punished dozens of staffers who admitted to prior marijuana use. That came after the White House instituted a policy of granting waivers to some staff who’ve used cannabis.
Press Secretary Jen Psaki subsequently said that nobody in the White House was fired for “marijuana usage from years ago,” nor has anyone been terminated “due to casual or infrequent use during the prior 12 months.” However, she’s consistently declined to speak to the extent to which staff have been suspended or placed in a remote work program because they were honest about their history with marijuana on a federal form that’s part of the background check process.
In any case, it’s unclear what impact the Appropriations report will have on future policy. Separate standalone legislation has been previously introduced by Rep. Charlie Crist (D-FL) to provide protections for federal workers who consume cannabis in compliance with state law, but it never received a hearing or a vote and has not been refiled so far this Congress.
$330m for Community Development Financial Institutions = $60m MORE for women- and minority-owned small biz, 1st time homebuyers, and sustainable development. Plus fairness for cannabis biz + vets and other feds. Good day at @AppropsDems ! pic.twitter.com/WpTvWIXeqa
— Congressman Charlie Crist (@RepCharlieCrist) June 30, 2021
“We are very grateful for Rep. Crist’s longstanding leadership to ensure that the government will one day have rational cannabis laws in place that respect responsible choices by its citizens,” NORML’s Strekal said.
Advocates are encouraged by the inclusion of the recommendation in the new report, but they’re more invested in ensuring that the actual standalone spending bill passes, as it provides key banking protections and upholds the District of Columbia’s right to regulate marijuana commerce.
Last week, the FSGG Subcommittee approved that legislation, which covers funding for various federal agencies and the District of Columbia for fiscal year 2022. It has now been approved by the full Appropriations Committee and next heads to the House floor.
Notably, the move by congressional Democrats to let the D.C. set its own marijuana policies is in contrast with a budget released last month by President Joe Biden, which proposed continuing the longstanding Republican-led rider that has prevented the city from spending its own money to regulate adult-use cannabis commerce.
After the Biden budget was released, Rep. Eleanor Holmes Norton (D-DC) told Marijuana Moment that she was “very disappointed” over the decision, especially considering that fact that he’s voiced support for D.C. statehood.
The exclusion of the D.C. provision from the Fiscal Year 2022 FSGG appropriations bill could set the stage for conflict between lawmakers and the president. The Biden administration has already disappointed advocates by declining to take meaningful action on cannabis reform as promised on the campaign trail, and his inclusion of the D.C. rider was seen as an outright hostile act.
The District’s mayor said in April that local officials are prepared to move forward with implementing a legal system of recreational cannabis sales in the nation’s capital just as soon as they can get over the final “hurdle” of congressional interference.
The ongoing blockade is the result of an amendment that was first added by Rep. Andy Harris (R-MD) when Republicans controlled the House and has since been continued in annual appropriations legislation. The House on several occasions has since passed spending bills that do not include the cannabis ban, but it has been included in final enacted legislation because the Senate under GOP control insisted on reinserting it.
The banking-related provision is less far-reaching than more robust standalone bills the House has passed on four occasions, but would still provide some protections to banks that work with state-legal marijuana operators.
“I’m very glad to see that this bill includes language that would prohibit any of the appropriated funds from being used to penalize financial institutions or providing financial services to businesses that participate in the legal marijuana industry in their state or locality,” Rep. Barbara Lee (D-CA) said at the committee markup.
But Rep. Hal Rogers (R-KY) said he is “concerned” about the cannabis banking provision. “There are serious public health issues that need to be addressed if we’re changing these regulations,” he said.
The current House FSGG bill’s banking language reads:
“SEC. 629. None of the funds made available in this Act may be used to penalize a financial institution solely because the institution provides financial services to an entity that is a manufacturer, a producer, or a person that participates in any business or organized activity that involves handling hemp, hemp-derived cannabidiol products, other hemp-derived cannabinoid products, marijuana, marijuana products, or marijuana proceeds, and engages in such activity pursuant to a law established by a State, political subdivision of a State, or Indian Tribe. In this section, the term ‘State’ means each of the several States, the District of Columbia, and any territory or possession of the United States.”
The language would provide limited protections as compared to the more comprehensive standalone legislation on the topic, since it would need to be renewed annually and only applies to the Treasury Department. It provides no restrictions on the Department of Justice, which is covered under a separate appropriations bill, for example.
President Joe Biden did notably include a separate long-standing rider in his budget proposal that would prevent the Justice Department from using its funds to interfere with the implementation of medical cannabis laws in states, however. President Donald Trump and President Barack Obama each called for ending the policy as part of their budget proposals, but Congress has consistently upheld it regardless.
In 2019 and last year, the House approved an even more expansive amendment that would have provided protections for all state and territory marijuana programs, rather than just medical cannabis systems. But the Senate did not follow suit and the provision was not included in final spending bill sent to Trump’s desk.
On several occasions when Trump signed large-scale annual spending legislation, he attached a statement that said he is empowered to ignore the congressionally approved medical cannabis rider, stating that the administration “will treat this provision consistent with the President’s constitutional responsibility to faithfully execute the laws of the United States.”
Perhaps unsurprisingly, Biden’s budget did not propose gutting the Office of National Drug Control Policy (ONDCP) as Trump did. The former president called for a roughly 90 percent cut in the agency’s budget in his proposals, but Congress did not follow suit. Biden helped to establish the drug czar’s office during his time in the Senate.
Biden’s budget also includes $17 million in funding to support industrial hemp production.
The FSGG measure is one of twelve separate appropriations bills that Congress will take up this year. Advocates will be watching to see how lawmakers in both the House and Senate address cannabis issues in forthcoming spending measures in the coming weeks.
Photo courtesy of Martin Alonso.