The Drug Enforcement Agency is taking an incremental step in reclassifying marijuana as a less dangerous substance.
Schedule I drugs are rolled under the strictest restrictions, so when news broke that the DEA was considering loosening those controls for marijuana, it made rather high waves. However, drug policy and employment experts said the potential change has few, if any, immediate implications for users, especially those who work in government.
“It does not mean that the 17% of Americans that admit to regularly using cannabis ... are legal cannabis consumers under federal law,” Karen O’Keefe, director of state policies at Marijuana Policy Project, told reporters during a May 2 briefing. “This shows that the federal government is recognizing ... that cannabis has current medical use, but that doesn’t fix the lack of harmony between state and federal law.”
Experts said the DEA’s announcement, first reported by The Associated Press, leaves more questions than answers because of the legal complexity of overlapping state and federal regulations. Notably, the rescheduling hasn’t happened yet, so much of the discussion around marijuana is hypothetical — at least until officials hash it out.
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“Employers are very confused right now,” Chase Stoecker, a Florida-based labor attorney for McGlinchey Stafford, said in an interview. “They’re putting together their handbooks and their policies when it comes to cannabis use. There’s a lot of questions. What can they allow? What can’t they allow?”
There’s also a lack of clarity for employees. Two dozen states have legalized recreational use of marijuana, which is the most commonly used federally illicit drug in the United States. A lack of joint rules and the continuation of overlapping jurisdictions have resulted in confusion for employees of the U.S. Forest Service, in particular, where Deputy Chief Tony Dixon issued a memo revealing “a noticeable uptick in cases of employees failing drug tests” last year.
“Those results have been associated with the legalization of marijuana and have resulted in corrective action, including suspensions and loss of employment,” he said.
Making marijuana a Schedule III drug would open the door for it to have accepted medical use and be dispensed lawfully as a prescription, assuming approval by the U.S. Food and Drug Administration. It’s possible the government could face employment questions from workers who seek to use marijuana as a prescribed medication. It’s also possible employees may try to advance claims that the Americans With Disabilities Act ought to cover medical marijuana as a reasonable accommodation. These claims were generally only successful under applicable state laws.
But to be blunt, the government isn’t facing a sea change in drug policy. The DEA’s proposal isn’t changing federal law, which means current policies on drug use for the civil service remain in effect, according to the Office of Personnel Management.
Agencies are still required to check for marijuana when conducting workplace drug tests.
OPM did not say what actions it would take, if any, to adjust employment procedures should marijuana get baked into the category of Schedule III drugs.
For some time, though, Stoecker said employers have been evaluating drug use — particularly for marijuana — on a case-by-case basis. Even OPM has said in its guidance that “agencies cannot find an individual unsuitable [for employment] unless there is a nexus between the conduct and the ‘integrity or ... efficiency of the service.’ ”
Drug use can jeopardize one’s ability to obtain a security clearance, but the intelligence community has also said marijuana use may not necessarily be an automatic disqualifier.
“We obviously believe that we want to have the talent that exists in America. And when somebody is using [cannabis] experimentally in a legal state, that’s something that shouldn’t on its own essentially disqualify,” Avril Haines, director of national intelligence, said during a hearing last year. “We continue to approach this from a whole-person perspective.”
According to the Defense Counterintelligence and Security Agency, which conducts 95% of all background investigations for more than 100 agencies, data specific to marijuana use is not tracked. However, so far this fiscal year, 25% of clearance denials and revocations are granted due to drug involvement and substance misuse, a spokesperson for DCSA said.
Though the future is hazy, Stoecker said a situation could arise in which exceptions are carved out for employees who deal with national security or sensitive work. For example, state laws permitting some off-duty marijuana use still prohibit use for “safety sensitive” employees, like law enforcement officers or child care workers.
Opportunities for research
Whether rescheduling opens the door for more federal research on cannabis is another question. While a lot of research has been done on cannabis, much of it has taken place at the academic level via observational studies, which recruit self-identified marijuana users.
Currently, researchers who want to administer a cannabis product to a patient must procure it from a federal source. Clinical studies must have approval from the FDA and the U.S. attorney general, according to Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, who spoke to reporters during a briefing.
“The hurdles that have made doing this research very cumbersome, historically, have not been explicitly tied to the fact that cannabis is a Schedule I controlled substance. Those hurdles are specific to cannabis itself,” he said. “If you want to change those hurdles, actual laws need to be changed, as well.”
At the Department of Veterans Affairs, for example, the Office of Research and Development is funding 11 clinical and preclinical studies focused on the potential risks and benefits of cannabis. However, researchers are still bound by the Controlled Substances Act’s requirements and federal guidelines.
VA press secretary Terrence Hayes said “marijuana use remains prohibited at VA under federal law,” even as an increasing number of states have legalized its use.
“Unfortunately, I think even after all the dust settles, there’s still going to be quite a bit of confusion among patients, consumers, lawmakers, doctors, the industry, pharmacists, regulators and everyone else,” Armentano said.
Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.
