Admitting to past marijuana use should not automatically disqualify people from being employed in the federal government, the Office of Personnel Management (OPM) said in a memo distributed to agencies on Thursday. Separately, the Biden administration is instituting a new policy of granting waivers to some White House staff who’ve used cannabis.
While the extent and recency of an applicant’s use can still be factors in making employment decisions, OPM said that simply admitting to prior cannabis consumption doesn’t necessarily mean a person lacks the “suitability or fitness for a position,” as long as they commit to not use marijuana while employed.
“It would be inconsistent with suitability regulations to implement a policy of finding an individual unfit or unsuitable for federal service solely on the basis of recency of marijuana use,” Acting OPM Director Kathleen M. McGettigan wrote. “Past marijuana use, including recently discontinued marijuana use, should be viewed differently from ongoing marijuana use.”
This government-wide development comes as NBC News is separately reporting that President Joe Biden’s administration will be granting waivers for certain officials in the White House’s Executive Office of the President who have used cannabis. Again, the extent of the person’s past use can influence whether they obtain a waiver, and they must pledge to stop consuming marijuana.
“As more state laws have changed, federal agencies are increasingly encountering individuals whose knowledge, skills, and abilities make them well-qualified for a position, but whose marijuana use may or may not be of concern when considering the suitability or fitness of the individual for the position,” says the new OPM memo, which applies to most federal workers except for those dealing with classified information or who are employed in a sensitive national security position.
There are statutory considerations that agencies must still take into account, including two factors that “could be implicated by an individual’s use or possession of marijuana.” Illegal use of controlled substances without “evidence of substantial rehabilitation” is one, OMP said, and the other is “criminal or dishonest conduct.”
“However, OPM’s suitability regulations do not permit agencies to automatically find individuals unsuitable for federal employment based on either factor,” it continues. “Rather, when agencies consider the suitability or fitness of an applicant or appointee for a position, the individual’s conduct must be evaluated on a case-by-case basis to determine the impact, if any, to the integrity and the efficiency of the Government.”
“Even where an individual has illegally used marijuana without evidence of substantial rehabilitation, agencies cannot find an individual unsuitable unless there is a nexus between the conduct and the ‘integrity or…efficiency of the service,'” the memo says.
This is a notable development that recognizes the reality that more states continue to legalize cannabis for medical and recreational purposes, and people who have used marijuana shouldn’t be discriminated against, even if it remains illegal under federal law.
The marijuana employment policy has been evolving for years, with a 2015 OPM memo similarly advising agencies against uniformly denying applicants based only on cannabis use and to instead approach hiring on a case-by-case basis. But the language and framing of the previous guidance was more critical of people who’ve used drugs, leaning into stereotypes about what such behavior means about their qualifications.
“Drug involvement can raise questions about an individual’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,” it said. “However, the individual’s conduct must be evaluated on a case-by-case basis.”
In recent years, lawmakers have encouraged OPM to review its marijuana-related guidance for hiring. Report language was attached to a House spending bill last year that said the policy should be specifically assessed as it concerns applicants and employees whose use of marijuana is compliant with state law.
The “policies should reflect changes to the law on marijuana usage and clearly state the impact of marijuana usage on Federal employment,” it says. Identical language was inserted into 2019 appropriations legislation as well.
Reps. Charlie Crist (D-FL) and Don Young (R-AK) have attempted to codify protections for federal workers who use cannabis in compliance with state law, introducing the bipartisan legislation in 2019 and 2018.
Beyond bringing federal employment policies up to speed amid the state-level legalization movement, the new guidance could widen the applicant pool and invite more talent into various agencies. Former FBI Director James Comey suggested in 2014 that he wanted to loosen the agency’s employment policies as it concerns marijuana, as potential skilled workers were being passed over due to the requirement.
“I have to hire a great work force to compete with those cyber criminals and some of those kids want to smoke weed on the way to the interview,” he said at the time.
Paul Armentano, the deputy director for NORML, said that much more action is needed to reform federal policies, including legalizing it and ending discrimination against employees who currently consume marijuana.
“The federal government’s refusal to remove the cannabis plant from its inappropriate categorization as a Schedule I prohibited substance under federal law continues to have ripple effects,” he said. “Placing civil service employees and others in the workforce under undue scrutiny because of their past use of cannabis—and imposing disciplinary action for those employees who consume cannabis while off-the-job in accordance with the laws of their state—are among the many negative consequences facing Americans as a result of the federal government’s ‘Flat Earth’ policy toward cannabis and those who consume it.”
Armentano pointed out that research shows that people “who consume cannabis while away from the job are at no greater risk for occupational accidents or injuries and, therefore, they should not be singled out and discriminated against solely for this activity.”
Biden, for his part, might continue to be opposed to adult-use legalization, but he does support other reforms like legalizing for medical use, decriminalizing possession, expunging prior records, modestly rescheduling the plant and letting states set their own policies. And regardless of where he stands, the fact remains that many Americans have used cannabis, meaning the administration would likely face hiring challenges if they imposed a blanket ban.
With respect to the White House policy that NBC reported, an official said that the guidelines “effectively protect our national security while modernizing policies to ensure that talented and otherwise well-qualified applicants with limited marijuana use will not be barred from serving the American people.”
“President Biden is committed to bringing the best people into government—especially the young people whose commitment to public service can deepen in these positions and who can play leadership roles in our country for decades to come,” an official said in a statement. “The White House’s policy will maintain the absolute highest standards for service in government that the president expects from his administration, while acknowledging the reality that state and local marijuana laws have changed significantly across the country in recent years.”
But former Obama administration staffer Tommy Vietor weighed in on the news about the Biden team’s move, saying it “seems similar if not the same” as the prior policy.
I don't get how this change squares with the Obama admin rules. It seems similar if not the same, but at some point there needs to be a public conversation about how the background check process is stupid and outdated. Why is the FBI asking about marijuana use in 2021? https://t.co/nWrfob4AL2
— Tommy Vietor (@TVietor08) February 26, 2021
There is one somewhat odd stipulation for White House workers who say they’ve used marijuana and receive a waiver. Depending on how recent that use was, they may be asked to work remotely for some amount of time, for unspecified reasons. They must also be subject to random drug testing.
Read the OPM memo on marijuana use and job eligibility below:
Photo courtesy of Mike Latimer.
Another Poll Shows Majority Of Americans Support Marijuana Legalization And Expungements
Another poll has found that a majority of Americans support legalizing marijuana and clearing the records of those with prior cannabis convictions.
This one—commissioned by CBS News and released on the unofficial marijuana holiday 4/20—shows that 55 percent of respondents said recreational cannabis should be legal in their own state, compared to 42 percent who said it should be illegal.
— CBS News Poll (@CBSNewsPoll) April 20, 2021
While still a sizable majority, that’s notably lower than several other recent surveys, including those released by Quinnipiac University and the Pew Research Center this month. Those polls found that 69 percent and 60 percent of Americans back broad legalization, respectively.
Unique to this poll, however, is that participants were also asked about related cannabis issues. For example, 59 percent of adults said that people with non-violent marijuana convictions in states that have legalized should have their records cleared, versus 37 percent who said the conviction shouldn’t be expunged.
Nearly six in 10 think people who have been convicted of nonviolent marijuana offenses in states where marijuana is now legal should have those convictions removed.https://t.co/EEOGctREt1 pic.twitter.com/MnPKkH4GJT
— CBS News Poll (@CBSNewsPoll) April 20, 2021
Among those who were surveyed and live in a legal marijuana state, 60 percent said they favor the policy. And 53 percent of those living in states where prohibition is still on the books said cannabis should be legalized.
Twenty-three percent of respondents said legalizing cannabis would increase crime and 19 percent said it would decrease crime—but the majority (54 percent) said it would have “no effect.”
CBS also asked respondents whether they felt legalizing marijuana would lead people to use other drugs. Most people (45 percent) said the reform would have “not much effect” to that end, while 33 percent said they felt more people would seek out other substances and 17 percent said it would make people less likely to try other drugs.
Nearly half of Americans (48 percent) said legalization would boost local economies, while 14 percent said it would have a negative economic impact and 35 percent said it wouldn’t have much of an effect at all.
Interestingly, while most people backed legalization in the poll, 53 percent said that openly using marijuana socially is “unacceptable,” compared to 43 percent who said it was “acceptable”—perhaps more a reflection of respondents’ perception of other people’s views than their own.
Though many Americans think using marijuana openly is socially acceptable, most Americans do not. 43% think it is, though this rises to 70% among those who use marijuana at least on an occasional basis.https://t.co/EEOGctREt1 pic.twitter.com/pbTAWQckIS
— CBS News Poll (@CBSNewsPoll) April 20, 2021
The poll involved interviews with 1,004 adults from March 9-14 and has a margin of error of plus or minus 3.7 percentage points.
Despite this latest example of polling showing that Americans favor ending prohibition, President Joe Biden is still not on board with extending that policy to the federal level, as confirmed again by the White House press secretary on Tuesday.
While the president says he supports allowing states to set their own policies, he feels it should only be decriminalized and rescheduled federally and wants more research to be done if he’s to change his position on broader reform.
This poll comes at a time when there’s a concerted push in both chambers of Congress to seize the opportunity they have with Democratic control to pass legalization legislation.
Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) have been working on a bill on their side. The majority leader told Marijuana Moment on Monday that he’s working to push the president in a pro-legalization direction as they draft the measure.
Schumer said last week that the legislation will be introduced and placed on the floor “soon.”
On the House side, Judiciary Chairman Jerrold Nadler (D-NY) said recently that he plans to reintroduced his legalization bill, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which cleared the chamber last year but did not advance in the Senate under GOP control.
Photo courtesy of Mike Latimer.
New House Bills Would Make Cannabis Businesses Eligible For Federal Small-Business Aid
Lawmakers in the U.S. House of Representatives have introduced three new bills to make state-legal marijuana businesses eligible for federal small business services, including loans, disaster relief and grant programs.
The package of legislation is aimed at establishing parity for cannabis businesses, which are currently prohibited from receiving federal aid due to marijuana still being classified as a Schedule I controlled substance. The country’s legal cannabis industry nevertheless now supports nearly 320,000 full-time jobs in the U.S., according to industry estimates.
With more states pursuing cannabis legalization, a growing number of legitimate small businesses are excluded from critical @SBAgov programs.
Read more about their legislation here 👇
— House Committee on Small Business (@HouseSmallBiz) April 20, 2021
The measures are largely similar to legislation introduced by the lawmakers in 2019, with some small changes.
One bill, sponsored by House Small Business Committee Chairwoman Nydia Velázquez (D-NY), would allow marijuana businesses to access resources from the federal Small Business Administration (SBA). The Ensuring Safe Capital Access for All Small Businesses Act of 2021, which had not been assigned a bill number as of Tuesday afternoon, would expand access to services such as microloans, disaster assistance and the agency’s loan guaranty program.
“With more and more states pursuing legalization, including my home state of New York, there are a growing number of legitimate small businesses that are excluded from critical SBA programs,” Velázquez said in a statement, noting that much of the cannabis industry consists of small businesses.
Compared to Velázquez’s 2019 bill, the new version adds clauses meant to expand the availability of services. While the 2019 bill applied to SBA itself, provisions in the new legislation also prevent SBA intermediaries, private lenders and state and local development companies from declining to work with businesses simply because of their marijuana-related work.
Another new section deals with debentures—certain unsecured loan certificates—and clarifies that SBA may not decline to purchase or guarantee a debenture just because of a business’s involvement in cannabis. Nor can other small business investment companies decline to provide assistance to the cannabis sector.
“This legislation will spark growth by extending affordable capital to small firms in the cannabis space,” she continued. “Simultaneously, the bill acknowledges the structural disadvantages facing entrepreneurs of color and seeks to level the playing field.”
Another newly refiled measure, H.R. 2649, sponsored by Rep. Dwight Evans (D-PA), would establish a U.S. Small Business Administration (SBA) grant program to provide funding to state and local governments to help them navigate the licensing process for cannabis businesses. The bill, which also removes marijuana from the Controlled Substances Act, specifies that the grant money should be used to benefit communities disproportionately impacted by the drug war.
My #HomegrownAct would help small businesses navigate #cannabis licensing & employment with a focus on communities most impacted by the War on Drugs.
Read more here: https://t.co/Do7ek2STWB https://t.co/K91iHPcCqk
— Congressman Dwight Evans (@RepDwightEvans) April 20, 2021
“My bill would act as a poverty-buster and help homegrown small businesses, which are the backbone of our economy and our neighborhoods. We need to make sure that the booming legal cannabis industry does not become consolidated in the hands of a few big companies,” Evans said.
Marijuana Moment is already tracking more than 1,000 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
A third bill, H.R. 2649, from Rep. Jared Golden (D-ME), would prohibit SBA partners that provide guidance and training services from denying help to businesses solely because of involvement in cannabis. The changes would affect providers such as SBA’s Small Business Development Centers, Women’s Business Centers and the Veterans Business Outreach Centers, among others.
“Our continued economic recovery depends on the health of American small businesses of all kinds. Especially in this environment, no Maine small business owner should be turned away from crucial SBA programs that could help them create jobs and lift up the economy,” said Rep. Golden. “My bill would help address this problem by providing small business owners directly or indirectly associated with the cannabis industry with access to the services and resources they need to get their small businesses off the ground and grow.”
Meanwhile, federal lawmakers have been making headway on other cannabis-related proposals. The House passed a cannabis banking bill on Monday, and broader legislation to legalize cannabis at the federal level is expected to be introduced soon.
The banking legislation would ensure that financial institutions can take on cannabis business clients without facing federal penalties. Fear of sanctions has kept many banks and credit unions from working with the industry, forcing marijuana firms to operate on a cash basis that makes them targets of crime and creates complications for financial regulators. The full House passed the bill on a 321–101 vote.
“Even if you are opposed to the legalization of cannabis, you should support this bill,” sponsor Rep. Ed Perlmutter (D-CO) said on the House floor. “The fact is that people in states and localities across the country are voting to approve some level of cannabis use, and we need these cannabis businesses and employees to have access to checking accounts, payroll accounts, lines of credit, credit cards and more.
Other Democrats, including Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) are working on legislation that would end federal cannabis prohibition completely.
Schumer said last week that the long-awaited proposal would be introduced “shortly” and placed on the floor “soon.” Schumer has so far declined to discuss the bill’s specifics, though he’s stressed that it will prioritize small businesses and people most historically impacted by the drug war.
In an interview with Marijuana Moment this week, Schumer worried that passage of the House banking bill could actually undermine broader congressional cannabis reform this year.
On the House side, Judiciary Chairman Jerrold Nadler (D-NY) said recently that he plans to reintroduced his own legalization bill, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which cleared the House in a landmark vote last year but did not advance in GOP-controlled the Senate.
Meanwhile, support for legalization among U.S. voters continues to grow. More than 9 in 10 Americans (91 percent) now support legalizing cannabis for either medical or adult use, according to a Pew Research Center poll released on Friday. Sixty percent of respondents said that cannabis should be legal for both medical and adult use. Thirty-one percent said it should be legalized for therapeutic purposes only, while just eight percent said it should continue to be criminalized across the board.
A majority of those in every age, race and political demographic included in the poll said they feel marijuana should be legal in some form, although many Republicans remain wary of adult-use legalization. Seventy-two percent of Democrats favored both medical and adult-use legalization compared to only 47 percent of Republicans.
Among the minority in opposition to federal legalization: President Joe Biden (D). White House Press Secretary Jen Psaki said last month that the president’s position on the issue “has not changed,” meaning he still opposes the reform. on Tuesday, Psaki refused to say whether Biden would sign or veto a cannabis legalization bill if passed by Congress.
The president instead backs modestly rescheduling the plant, decriminalizing possession, legalizing medical cannabis, expunging prior marijuana records and letting states set their own policies.
Read the full text of the new legislation below:
Biden Won’t Commit To Sign Marijuana Bill If Passed By Congress, Press Secretary Says
White House Press Secretary Jen Psaki on Tuesday declined to say whether President Joe Biden would sign or veto a bill to federally legalize marijuana if it arrives on his desk, noting that his cannabis policy position is at odds with broader proposals that congressional Democratic leaders are working on.
She was also asked about his stance on marijuana banking reform, the disconnect between public opinion favoring legalization and the president’s opposition and whether Biden plans to revisit clemency applications for those facing federal sentences over cannabis.
The noncommittal response to the legalization question comes on the unofficial cannabis holiday 4/20—a day that has seen a wide range of politicians, including Senate Majority Leader Chuck Schumer (D-NY), voice support for comprehensive marijuana reform.
Psaki was pressed on the Senate leader’s remarks and asked whether Biden would support legislation to end federal cannabis prohibition if Congress approved it.
“The president supports leaving decisions regarding legalization for recreational use up to the states, rescheduling cannabis as a Schedule II drug so researchers can study its positive and negative impacts and, at the federal level, he supports decriminalizing marijuana use and automatically expunging any prior criminal records,” she said. “He also supports legalizing medicinal marijuana so that’s his point of view on the issue.”
Biden’s positions to that end are well known, but an outstanding question has been whether his opposition to adult-use legalization is so strong that he would reject a reform proposal such as those currently being drafted in the House and Senate.
Asked directly what action the president would take if a federal legalization bill was sent to his desk, Psaki signaled that he wouldn’t be inclined to sign it, stating “I just have outlined what his position is, which isn’t the same as what the House and Senate have proposed, but they have not yet passed a bill.”
The reporter followed up to ask about a separate cannabis pledge Biden made as a presidential candidate, when he said people incarcerated in federal prisons over non-violent marijuana offenses should be released.
Psaki said that would be addressed if cannabis was rescheduled to Schedule II—a dubious claim given that there are still serious penalties for offenses involving substances in that category as well. She also didn’t provide any insight into whether the president is proactively pushing for the modest scheduling change.
Later in the briefing, the press secretary was asked where Biden stands on legislation to protect banks that service state-legal marijuana businesses from being penalized by federal regulators. The House approved the Secure and Fair Enforcement (SAFE) Banking Act along bipartisan lines on Monday.
She said it was a “good question,” but she wasn’t sure and told the reporter she would follow up with a response later.
When pushed on Biden’s opposition to the legalization in the face of mounting, majority support among Americans, Psaki said that while he’s in favor of decriminalization and legalizing medical marijuana, he wants more research on the “positive and negative effects” of adult-use legalization.
“He’ll look at the research once that’s concluded,” she said. “Of course we understand the movement that’s happening toward it. I’m speaking for what his position is and what long, consistently has been his position. He wants to decriminalize, but again, he’ll look at the research of the positive and negative impacts.”
The press conference ended with a final question about cannabis policy—specifically whether the Biden administration plans to revisit requests for clemency for federal cannabis convictions. The reporter cited the case of Luke Scarmazzo, who was sentenced to 22 years in federal prison for operating a state-legal medical cannabis business in California, as an example.
“Given, as you’ve noted in the briefing, the president’s support for decriminalization, support for expunging exactly these types of offenses, are there any plans to revisit some of those bids for clemency?” the reporter asked.
“Well, I would just take it as an opportunity to reiterate that the president supports legalizing medicinal marijuana,” Psaki said. “It sounds like this would have been applicable in this case, and of course decriminalizing marijuana use and automatically expunging any prior criminal records. In terms of individual cases, I can’t get ahead of those obviously.”
These question come, of course, on 4/20. But they also come at a time when there’s a concerted push in both chambers of Congress to seize the opportunity they have with Democratic control to pass legalization legislation.
Schumer, Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) have been working on a bill on their side. The majority leader told Marijuana Moment on Monday that he’s working to push the president in a pro-legalization direction as they draft the measure.
Schumer said last week that the legislation will be introduced and placed on the floor “soon.”