By Deborah Hopkins, August 15, 2018
I live in Washington, DC, and on any given day, I’ll smell the unique scent of marijuana several times as I go about my daily activities. During a 6 a.m. run – yep, there’s a strong hint of weed in the air as I run through my neighborhood in NW. I guess it goes well with coffee? Walking to the Metro behind someone who is openly smoking a joint? Happens all the time. A car drives by, windows open, and out wafts the pungent smell of cannabis? You’d better believe it. Recreational marijuana is legal in DC, so it’s everywhere. Literally, everywhere.
- Fun Fact 1: It’s illegal to sell in DC, but you can give it away for free. Or you can buy something – say, a pencil, for $20 – and with it comes a free joint. There are even smartphone apps for easy ordering. Gotta love those legal loopholes.
- Fun Fact 2: It’s technically only legal to use in the privacy of your own home, and its use is prohibited in public places such as sidewalks, hospitals, buses, and on federal property. But that’s not really enforced much.
So, anyone who lives in DC is allowed to use marijuana, right? Wrong.
It is illegal for federal employees to use marijuana in any form – smoke, edibles, tinctures, pens, etc. – if they are employed by a federal agency, even if they live in a place where marijuana is legal. So if a federal employee living in DC uses marijuana, it’s very likely she will have to say goodbye to her federal job because she will be removed, most likely for misconduct or suitability reasons.
The same applies for federal employees in the nine states where recreational marijuana is currently legal: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington. (About 20 additional states allow for its use with a medical license.)
There’s proposed legislation in Congress that would change that. The bipartisan bill Fairness in Federal Drug Testing Under State Laws Act (H.R. 6589) was recently introduced by Charlie Crist (D-FL) and co-sponsored by Drew Ferguson (R-GA). Look at that, Democrats and Republicans on the same page about something! In its current form, the bill would bar the federal government from denying employment or making federal employees “subject to any other adverse personnel action” if they tested positive for marijuana while living in a state where its use is legal.
A few weeks ago, Senator Chuck Schumer (D-NY) introduced the Marijuana Freedom and Opportunity Act (S. 3174) which would take marijuana off the list of controlled substances at the federal level. That bill hasn’t gone anywhere yet.
A few more statistics: According to one article I read, about 42 percent of government employees surveyed (includes state and local government) approve of legalizing recreational and medicinal marijuana and about 21 percent think only medicinal marijuana should be legalized. Roughly 11 percent oppose legalizing it in any form.
Now that we’re on the same page regarding the legality of marijuana use by federal employees, I want to answer a few questions that routinely come up during training sessions.
Can a federal agency require a drug test from an employee suspected of being under the influence of marijuana?
There are two categories we need to look at here: drug testing positions and non-drug testing positions.
Drug Testing Positions:
An agency can order a drug test of an employee if the employee occupies a position that has been identified as part of the agency’s drug testing program, and the agency has a reasonable belief the employee is under the influence. Mandatory drug testing is a search and seizure under the Fourth Amendment and must be reasonable to pass constitutional muster. NTEU v. Von Raab, 489 U.S. 656 (1989).
In addition, an employee is generally required to comply with an order to take a drug test first, and to challenge the order after the fact. Watson v. DOT, 91 FMSR 5447 (1991)
In order to sustain a charge of failure or refusal to comply with an order to undergo a drug test, the agency must prove:
- The employee was given an order to undergo a test;
- The order was lawful (i.e., within the agency’s authority);
- The employee failed or refused to comply; and
- The failure or refusal was not justified.
Garrison v. DOJ, 95 FMSR 5215 (1995)
Non-Drug Testing Positions:
The agency’s drug testing program has to be designed to balance the needs of the agency relative to the particular types of positions with an employee’s rights to privacy. So if the employee is just a regular old employee occupying a regular old position, he generally cannot be ordered to undergo a drug test. A good agency strategy is that if it suspects drug intoxication in an employee who does not occupy a testing position, offer the drug test anyway. If the employee refuses, that refusal can be used when evaluating the other evidence (bloodshot eyes, smell of marijuana, etc.). There is a “reasonable suspicion” exception that bumps up against constitutional issues, and exceptions if there is an accident in the workplace, but generally an agency wouldn’t even need to go the drug testing route if there is preponderant evidence the employee is under the influence.
Can a federal employee use marijuana as a reasonable accommodation for a disability?
While medical marijuana has been shown to be effective for treatments from stomach ulcers to glaucoma to cancer, it is NOT a reasonable accommodation because its use violates federal law.
What happens if a federal employee doesn’t use marijuana but lives in a home where non-federal employees smoke, grow or otherwise use marijuana?
Just ask the former USDA employee whose husband grew and sold marijuana on their property in California, a state where it was legal to do so. While there was no evidence the employee actually used marijuana herself, residing in a place where it was grown and sold was enough to cost her a GS-9 Forestry technician position. Avila v. Agriculture, MSPB No. SF-0752-17-0488-I-1 (February 26, 2018) (ID).
Is using marijuana while a federal employee a zero-tolerance, automatic removal?
No. In fact, zero-tolerance, automatic-removal policies are illegal in the government with a few exceptions. As the law stands, just about every executive agency (except the VA) must determine the appropriate penalty by considering the Douglas factors in a case where an employee is using marijuana. Sometimes, we see agencies incorporate last chance agreements with people who use illegal drugs, and those can be very effective. If successful, you retain an otherwise good employee. But if the employee violates the agreement, it’s immediate removal.
Here’s a case example: The USPS removed an employee who violated a last chance agreement that included a provision prohibiting her from working under the influence of drugs or alcohol while on duty. She was sent for a drug and alcohol test after her supervisor noticed she was having difficulty keeping her balance and her eyes were “red and glossy.” She tested positive for alcohol and marijuana. As last chance agreements go, this meant immediate removal for the employee. Complainant v. U.S. Postal Service, EEOC No. 0120130190 (2014).
What if a supervisor believes a federal employee is under the influence of marijuana at work, but doesn’t want to discipline the employee because the employee is much more pleasant to work with when he is high?
I have been asked this more than once, and I laugh out loud every time because I can see why this scenario might be tempting to ignore. That’s between you and your agency, but I bet you know the correct answer: Your job is on the line if you let that one go.
We’ll keep you posted on the proposed legislation if it goes anywhere, but in the meantime, Just Say No. Hopkins@FELTG.com