Congress members are continuing a push to change how agencies view individuals’ past marijuana use in the security clearance and federal hiring processes.

A new bill that Sen. Gary Peters (D-Mich.), chairman of the Homeland Security and Governmental Affairs Committee, introduced last week aims to limit how much weight agencies can place on past marijuana use when considering applications for federal jobs or security clearances.

“Current federal law allows highly qualified individuals to be denied federal employment or security clearances based on past use of marijuana or cannabis products, despite legalization at state levels,” Peters wrote in a press release Wednesday. “This misalignment between evolving state laws, federal guidance and actual hiring practices has created a barrier for talented individuals seeking federal employment, which could limit the government’s ability to compete for top talent.”

The new bill, nicknamed the “DOOBIE” Act, focuses on easing restrictions for those who have used marijuana in the past, either recreationally or for medical reasons. Under the legislation, agencies wouldn’t be able to deny a federal job application, security clearance application or other federal credentials based solely on an individual’s prior use of marijuana.

HSGAC is expected to take up the bill for consideration and possible advancement during an upcoming hearing on July 24.

The proposed changes outlined in Peters’ bill, however, are already largely in place at agencies. Both the Office of the Director of National Intelligence and the Office of Personnel Management published updated guidance on the topic back in 2021.

ODNI’s guidance, while saying that the illegal use of controlled substances can raise security concerns, also says an individual’s prior use of recreational marijuana shouldn’t be the determining factor in granting a clearance. Similarly, OPM’s guidance directed agencies not to automatically preclude federal applicants from job opportunities solely based on past, discontinued use of marijuana.

“While federal agencies, including OPM and ODNI, have issued guidance stating that past marijuana use alone should not disqualify candidates, many potential applicants remain hesitant to pursue federal positions due to a fear of automatic disqualification,” Peters wrote. “The DOOBIE Act would align federal hiring practices with current guidance on past marijuana use, broaden the applicant pool by providing clarity for prospective federal employees and help the government compete with the private sector for talent.”

The DOOBIE Act aims to take the practices outlined by ODNI and OPM a small step further by codifying them, Ryan Nerney, managing partner of the Ladera Ranch, California, office at law firm Tully Rinckey, told Federal News Network.

“This bill would just solidify that, because [right now] that’s just guidance within various different agencies,” Nerney said in an interview. “Especially intelligence agencies, even though this guidance came out, they still have stricter views on marijuana use when it comes to that. So, potentially codifying this in an actual bill from Congress, might make this guidance that has been in place since 2021 a little bit more expansive.”

House efforts to lift restrictions in clearance process

Peters’ bill is the latest effort in Congress, but it dovetails with several other members who have been pushing to ease restrictions on marijuana use by federal employees and government job applicants.

Last fall, the House Oversight and Accountability Committee took up a companion bill to the DOOBIE Act. The House legislation, nicknamed the “CURE” Act, similarly aims to prohibit agencies from considering past marijuana use while hiring for federal jobs, or during the security clearance process.

But the House bill, if enacted, would take things a further step by requiring agencies to create a review process to look back at past security clearance and job applications. Agencies could reconsider previously denied applications based solely on an individual’s marijuana use, according to the bill.

The bipartisan CURE Act, first introduced by Reps. Jamie Raskin (D-Md.) and Nancy Mace (R-S.C.) last July, advanced out of the Oversight committee in a vote of 30-14 last fall. But the legislation so far has not been slated for a House floor vote.

“The CURE Act will ensure that talented individuals seeking to honorably serve our country are not precluded from doing so simply because they admit to having once used marijuana,” Raskin said in a 2023 press statement following the Oversight committee’s advancement of the legislation.

Confusion continues around federal weed policies

The question of whether marijuana use prevents eligibility for a federal job or a clearance has become a prevalent topic in recent years, as more states continue to legalize or decriminalize marijuana, and recreational marijuana use grows. One recent study found that daily marijuana use has surpassed daily alcohol use in the United States, according to an Associated Press article from May.

At the federal level, marijuana is considered illegal and currently classified as a Schedule I drug, alongside substances like heroin and LSD. But given changing state laws on marijuana use, Nerney said there’s still a lot of confusion — even today — around how that impacts the federal security clearance process.

For instance, a 2023 survey of young professionals found that about a quarter of respondents didn’t understand the government’s policy on marijuana use. Out of about 900 respondents in the survey, conducted by ClearanceJobs and the Intelligence and National Security Foundation, 40% said they had used marijuana within the past year. Additionally, 21% said that their use of marijuana, alcohol or other drugs, would prevent them from applying for a clearance.

Right now, agencies generally follow guidance that says past marijuana use is “relevant,” but not “determinative.” Using marijuana won’t automatically lead to a security clearance denial, and agencies are still expected to consider the individual’s specific circumstances.

“Agencies take this into account, and they follow this, but there’s still gray area that they can use,” Nerney said. “You can’t be disqualified just because you use marijuana. It has to take into account a whole bunch of different things.”

For instance, in the security clearance process, agencies may consider how recently individuals have used marijuana, how often they’ve used it and whether they plan to continue using marijuana in the future. ODNI’s guidance, however, still directs personnel to refrain from using marijuana once they’re granted a clearance.

How much leeway should agencies have?

The question of how specific the guidance should be on marijuana use in determining clearance remains up in the air as well. Having some gray area may be beneficial, Nerney said, by giving agencies flexibility to decide clearance process applications on a case-by-case basis. But at the same time, he said a more specific approach would make the policy easier to interpret.

“It goes both ways, but I think overall, it probably would be better if everything was a little bit more specific. But not everybody is the same. There’s not going to be a one-size-fits-all,” Nerney said. “[Some gray area] gives us a little bit more leeway. If [agencies] feel that there’s a threat, they can make that determination to deny or revoke clearance.”

There may be more changes on the horizon at the federal level as well. The Drug Enforcement Administration recently said it’s looking to take steps to reclassify marijuana as a less dangerous drug.

Even if DEA reclassifies cannabis, though, legal experts have said it wouldn’t have much effect on marijuana’s role in federal hiring or the security clearance process, since the drug would still be considered a controlled substance and illegal at the federal level.

Regardless of the current legislative and administrative efforts to make changes, Nerney said there likely won’t be a comprehensive update to the security clearance process until marijuana is decriminalized or made legal at the federal level.

“It’s kind of slow steps, little steps, things that are helpful I think, but ultimately, major changes aren’t going to happen until it’s legalized,” Nerney said. “Once that happens, then there’s going to be a snowball effect. They’ll have to update the security executive agent directive and the security clearance guidelines.”

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