White House Approval Sought For Changes To Marijuana Questions In Federal Hiring Process

U.S. officials are seeking White House approval on proposed changes to federal hiring practices that would treat past marijuana use by applicants much more leniently than current policy does. If approved, the changes are expected to significantly expand the pool of eligible candidates for government jobs.

Existing federal job-application forms ask candidates about their past cannabis use within the past one, five or seven years, depending on the security level of the position. Under the proposal from the Office of Personnel Management (OPM), applicants would be asked about marijuana use only within the past 90 days.

The changes would also remove cannabis from the forms’ questions about the use of illegal drugs generally and instead add separate questions about marijuana. Further, they would make clear that use of cannabis products containing less than 0.3 percent THC, which is now classified as federally legal hemp, does not need to be disclosed at all.

The agency first announced the plans in a Federal Register notice late last year, seeking to widen the applicant pool for qualified federal workers and recognize what it called “changing societal norms” amid the state-level legalization movement. That announcement opened a 60-day public comment period.

In a new new notice set to be published in the Federal Register on Tuesday, OPM says it will now ask the White House Office of Management and Budget (OMB) to approve the changes. Another round of public comments will be accepted for 30 days.

The draft Personnel Vetting Questionnaire (PVQ) would replace the current SF85, SF85P, SF 85P-S and SF86 forms, which each cover positions of varying levels of sensitivity and security. Those forms require applicants to disclose use of illicit drugs by checking them off on a list.

During the last round of public input on the new unified questionnaire proposal, OPM received roughly 280 comments from 55 commenters, the agency said in its latest announcement, including many who said the revision could expand the pool of eligible applicants for federal jobs.

The agency said in the new notice that it agrees with one recent commenter who said OPM ”has a duty to ensure that the Federal Government workforce accurately represents America” by reducing restrictions on people who have used cannabis.

“OPM concurs with one of the commenters who fully supported the new approach and stated: ‘The PVQ should reflect that because most Americans live in states where marijuana is legal, they should not be prevented from serving in the Federal Government,’” the agency said. “‘By only asking about marijuana use in the last 90-days (as opposed to last 7 years), the PVQ will greatly expand the pool of candidates available for Federal employment.’”

The new proposal “takes into account changes in the legal landscape and societal norms regarding marijuana use.”

Comments also came in from federal agencies and private contractors. Both the Department of Homeland Security (DHS) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) submitted lists of proposed edits that generally supported the change. Aerospace contractors Boeing and Lockheed Martin also suggested technical changes to make the proposal more workable in practice.

OPM said in the new notice, however, that it “did not change its approach to the collection of information regarding use of marijuana as a result of the comments received.”

In general, the marijuana questions on the new draft form seem to give federal employers more detailed information that could potentially enable them to exercise discretion when making hiring decisions based on past cannabis use.

For example, if a person answers “yes” to having consumed marijuana in the past 90 days, they will be prompted with follow-ups. That includes asking applicants to simply “explain” with an open-ended response.

People who answer in the affirmative to the 90-day question while serving in a national security, public safety or criminal justice position would see several additional questions, such as when they first used it in that role, the most recent time they consumed, frequency of use and the “circumstances surrounding your use.”

The proposed screening form also asks people if they’ve been “involved in the manufacture, cultivation, trafficking, production, transfer, shipping, receiving, handling sale, or illegal purchase of marijuana or cannabis derivative” in the past five years, and also asks if applicants intend to become involve in such activity in the future.

In 2021, the Biden administration instituted a policy last year authorizing waivers to be granted to certain workers who admit to prior cannabis use, but some lawmakers are pushing for additional reform.

Rep. Jamie Raskin (D-MD), for example, said at a congressional hearing on marijuana legalization last November that he intends to file a bill aimed at protecting federal workers from being denied security clearances over marijuana.

“We’ve got 2.85 million federal employees in America—in my state, more than 100,000 people,” he said. “And people have been disqualified from federal employment because they honestly admit on a security clearance form that they have once used marijuana, something that more than half of the country has done.”

Before the House passed a marijuana legalization bill last year, Raskin filed an amendment to require federal agencies to review security clearance denials going back to 1971 and retroactively make it so cannabis could not be used “as a reason to deny or rescind a security clearance.” That proposal was narrowly defeated in a floor vote, however.

As part of advancing the National Defense Authorization Act (NDAA) last year, Senate leaders had also sought to attach separate, broader intelligence legislation that included a provision preventing the denial of security clearances over cannabis. The proposal was approved by a Senate committee last year, but two GOP senators protested the inclusion of the marijuana language and it was consequently dropped from the measure.

As more states have moved to legalize marijuana in some form, workplace cannabis policies have been under close scrutiny.

Last year, the nation’s largest union representing federal employees adopted a resolution in support of marijuana legalization and calling for an end to policies that penalize federal workers who use cannabis responsibly while they’re off the clock in states where it is legal.

A federal marijuana legalization bill filed by Senate Majority Leader Chuck Schumer (D-NY) in July also contains a provision that would specifically prohibit federal employers from testing workers for cannabis, with certain exceptions for sensitive positions such as law enforcement and those involving national security.

But in general, federal agencies have been reluctant to loosen cannabis-related employment rules despite state efforts to legalize cannabis.

For example, the Substance Abuse and Mental Health Services Administration (SAMHSA) recently proposed a changes to drug testing policies for federal workers that would clarify that having a doctor’s recommendation for medical marijuana or any other Schedule I drug is not a valid excuse for a positive drug test.