Blunt truth: No ‘significant changes’ for federal employees if Biden administration reclassifies marijuana

The Biden administration and Congress are both taking steps to reclassify marijuana as a less dangerous drug. But little changes for federal employees.

The Biden administration and Congress are both taking steps to reclassify marijuana as a less dangerous drug — but the blunt truth is that these efforts would have much less of an impact on the federal workforce, compared to the general U.S. public.

The Associated Press reported Tuesday that the Drug Enforcement Agency is preparing to downgrade cannabis from a Schedule I drug to a Schedule III drug under the Controlled Substances Act.

The decision, according to the AP’s reporting, still requires review from the Office of Management and Budget. If approved by OMB, the DEA would also gather public feedback before finalizing its decision.

The Department of Health and Human Services last August recommended the DEA reclassify cannabis to a Schedule III drug.

“DOJ is looking into that … they’re moving with that process,” White House Press Secretary Karine Jean-Pierre told reporters on Wednesday.

Schedule III drugs include ketamine and anabolic steroids, and according to the AP,  are subject to rules that allow for some medical uses.

Ryan Nerney, managing partner of the Ladera Ranch, California office at the law firm Tully Rinckey, told Federal News Network moving cannabis from Schedule I to Schedule III could potentially have some impact on pre-employment screening and drug testing of candidates applying for federal government positions.

“Schedule I through Schedule III,  it’s still technically considered a controlled substance. It would be more akin to somebody misusing prescription drugs. Obviously, at least in some circumstances, you can’t appear at work under the influence of something without a prescription. Or you obviously can’t appear at work under the influence of alcohol or anything like that,” Nerney said Wednesday.

Prior marijuana use wouldn’t be an “automatic” disqualification from federal employment like other Schedule I drugs — including LSD and ecstasy — but Nerney said agencies would still keep strict rules about marijuana use.

“It would still be along the lines of federally illegal, and anything that’s federally illegal, it doesn’t even matter if somebody’s employed in California or Colorado, because it’s a federal security clearance, that still is a concern,” he said.

Nerney said a history of marijuana use especially will still have a “significant impact” on security clearance holders, because it would still be illegal on a federal level.

“Around the edges, there could be some changes, but ultimately, it’s still a part of the Controlled Substance Act. So until they actually take action to decriminalize and take it 100% off of the CSA, really, there’s not going to be significant changes to the federal employee process, security clearance process, anything like that,” he added.

Following the Biden administration’s actions, Senate Majority Leader Chuck Schumer (D-N.Y.) and Sens. Ron Wyden (D-Ore.) and Cory Booker (D-N.J.) reintroduced the Cannabis Administration and Opportunity Act on Wednesday.

Among its provisions, the bill would remove cannabis from the Controlled Substances Act.

The legislation, according to a fact sheet from when the bill was first introduced in 2022, removes “unnecessary federal employee pre-employment and random drug testing for cannabis.” The bill, however, would keep drug testing in place for certain categories of federal employees in national security, law enforcement, and commercial transportation.

A staff member in Wyden’s office confirmed these provisions impacting federal employees remain in the reintroduced bill. However, the staffer added that it remains unclear what implications, if any, the Biden administration’s reclassification of cannabis would have on federal employees.

Currently, federal regulations and a 1986 Reagan administration executive order direct the heads of federal agencies to implement drug testing programs for federal employees, including testing for cannabis.

Schumer said at a press conference Wednesday that the bill would expunge the criminal records of many Americans with low-level marijuana offenses “that haunt them and inhibit them for decades, preventing them from getting good jobs and leading good, strong lives.”

“Getting caught with a little bit of marijuana for you to get saddled with a serious criminal record that prevented the person from getting a good job, buying a good home, getting ahead in life,” Schumer said.

The bill, however, allows drug testing for marijuana to continue for federal law enforcement officers, or federal employees “determined to have significant involvement in national security, the protection of life and property, public health, and safety.”

Booker applauded the Biden administration’s efforts to reclassify marijuana.

“I think it’s a great step that the Biden administration is moving in the direction of not making this a Schedule I drug, and the absurdity of that is outrageous,” he said. But honestly, the bill we are introducing today is the solution to this long, agonizing, hypocritical, frankly unequally enforced set of bad laws.”

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