Past or discontinued marijuana use shouldn’t automatically preclude federal applicants or appointees from most employment opportunities in the federal government, the Office of Personnel Management said Thursday.

Agencies use a variety of factors to determine who’s suitable for a position in the federal government, including an applicant or appointee’s criminal or dishonest conduct and illegal use of drugs, narcotics or other controlled substances without “evidence of substantial rehabilitation,” OPM said in a new memo to agencies.

But those decisions have become more complicated in recent years, as 15 states and the District of Columbia have removed prohibitions on recreational or medical marijuana use.

And while state laws have changed, federal laws largely haven’t.

“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,” Kathleen McGettigan, OPM’s acting director, said.

The OPM director is the suitability and credentialing executive agent, responsible for setting the standards needed to determine whether a person is fit to serve in a position in the federal government.

Under OPM’s suitability regulations, agencies can’t automatically find an applicant or appointee unsuitable for federal employment based on criminal conduct or drug use.

Agencies should instead, OPM said, consider a few factors on a case-by-case basis:

• The nature of the position for which the person is applying or employed,
• The nature and seriousness of the conduct,
• The circumstances surrounding the conduct,
• The recency of the conduct,
• The age of the person at the time conduct,
• Societal conditions and,
• Rehabilitation or efforts toward rehabilitation.

“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,” McGettigan said. “Past marijuana use, including recently discontinued marijuana use, should be viewed differently from ongoing marijuana use.”

Agencies should consider all of those factors together, where they apply, to make suitability determinations, OPM said.

In addition, applicants or appointees who have violated the Controlled Substance Act or engaged in criminal conduct in the past won’t necessarily receive an unfavorable suitability determination.

It depends, OPM said, on whether a person’s past conduct with marijuana and his or her employment might impact “the integrity… or efficiency of the service.”

While applicants with a history of marijuana use before joining the federal government might have some leeway, the rules tighten once they become an employee.

State laws have changed over the years, but federal laws and policies on keeping a drug-free workplace are still in place, OPM said.

Marijuana, for example, is still considered a Schedule I substance under the Controlled Substances Act. 

And agencies are still supposed to comply with an 1986 Drug-Free Workplace executive order, which requires federal employees to refrain from using illegal drugs, whether on or off duty.

Employees who currently use illegal drugs aren’t, generally speaking, suitable for federal employment, according to that executive order. But agencies aren’t required to discipline those who seek counseling or treatment and stop using illegal drugs after rehabilitation, the order said.

“An individual’s disregard of federal law pertaining to marijuana while employed by the federal government remains relevant and may lead to disciplinary action,” OPM said. “It is important to note that it is also the policy of the federal government to offer appropriate prevention, treatment and rehabilitation programs and services for federal civilian employees with drug problems.”

The military has been juggling similar questions about marijuana use, especially as the services struggle to retain talented service members and juggle ever-changing state laws and views on the topic.

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