A federal agent, who worked a large portion of his almost 30 years as a federal employee with the Department of Homeland Security, was recently fired. The reason for termination: use of CBD oil. Isn’t CBD oil legal? In most cases, yes. However, federal agencies are lashing out at workers who use the product. CBD Following is recent guidance from the Office of the Director of National Intelligence addressing the impact of using marijuana or CBD-related products and Can Federal Employees Use THC or CBD in Legal States? Encouraging news from the front, my dearest! As of this writing, all but 14 states have surrendered their discriminatory cannabis prohibition
Federal agent loses job after using CBD for chronic pain
A federal agent, who worked a large portion of his almost 30 years as a federal employee with the Department of Homeland Security, was recently fired. The reason for termination: use of CBD oil.
Isn’t CBD oil legal?
In most cases, yes. However, federal agencies are lashing out at workers who use the product. CBD products often contain tetrahydrocannabinol (THC). As a result, use of the product can trigger a positive drug test for use of marijuana.
Conventional drug testing cannot distinguish between THC from marijuana use or CBD products. This is because conventional testing generally shows that THC is present in the sample but does not provide information on the amount. As a result, those who have a very small amount, as found in CBD products, test positive in the same way those who are using marijuana, which has a much higher level of THC, would get a positive result.
What happens of a federal agent has a positive drug test?
Federal agencies generally have a no-tolerance policy when it comes to THC. Any presence of the amount in a sample, regardless of the quantity, could result in termination.
Is this a common problem?
A spokesperson for the Federal Law Enforcement Officers Association stated a “couple dozen” federal enforcement officers are having trouble due to use of CBD products. Data for other federal positions would likely indicate the issue is much larger.
What options are available for federal employees facing termination?
Those who find themselves facing an investigation, discipline and potential termination are wise to act to protect their interests. An attorney experienced in federal employment matters can review the situation and discuss your options.
Guidance Issued on Marijuana and Federal Employee Security Clearances
Following is recent guidance from the Office of the Director of National Intelligence addressing the impact of using marijuana or CBD-related products and investing in marijuana-related businesses where they are allowed by state law. (Note: The acronym SecEA means “Security Executive Agent”—that is, the Director of National Intelligence—and SEAD 4 refers to “Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines.”)
Based on current federal law, I provide additional adjudicative guidance herein on three topics that have generated ongoing inquiries from federal agencies: 1) recency of recreational marijuana use; 2) use of cannabidiol (CBD) products such as CBD oils; and 3) investment by persons in marijuana-related businesses.
With regard to the first topic, agencies are instructed that prior recreational marijuana use by an individual may be relevant to adjudications but not determinative. The SecEA has provided direction in SEAD 4 to agencies that requires them to use a “whole-person concept.” This requires adjudicators to carefully weigh a number of variables in an individual’s life to determine whether that individual’s behavior raises a security concern, if at all, and whether that concern has been mitigated such that the individual may now receive a favorable adjudicative determination. Relevant mitigations include, but are not limited to, frequency of use and . whether the individual can demonstrate that future use is unlikely to recur, including by signing an attestation or other such appropriate mitigation. Additionally, in light of the long-standing federal law and policy prohibiting illegal drug use while occupying a sensitive position or holding a security clearance, agencies are encouraged to advise prospective national security workforce employees that they should refrain from any future marijuana use upon initiation of the national security vetting process, which commences once the individual signs the certification contained in the Standard Form 86 (SF-86), Questionnaire for National Security Positions.
With respect to the use of CBD products, agencies should be aware that using these cannabis derivatives may be relevant to adjudications in accordance with SEAD 4. Although the passage of the Agricultural Improvement Act of2018 excluded hemp from the definition of marijuana within the Controlled Substances Act, products containing greater than a 0.3 percent concentration of delta-9 tetrahydrocannabinol (THC), a psychoactive ingredient in marijuana, do not meet the definition of “hemp.” Accordingly, products labeled as hemp-derived that contain greater than 0.3 percent THC continue to meet the legal definition of marijuana, and therefore remain illegal to use under federal law and policy. Additionally, agencies should be aware that the Federal Drug Administration does not certify levels of THC in CBD products, so the percentage of THC cannot be guaranteed, thus posing a concern pertaining to the use of a CBD product under federal law. Studies have shown that some CBD products exceed the 0.3 percent THC threshold for hemp, notwithstanding advertising labels (Reference F). Therefore, there is a risk that using these products may nonetheless cause sufficiently high levels of THC to result in a positive marijuana test under agency-administered employment or random drug testing programs. Should an individual test positive, they will be subject to an investigation under specific guidelines established by their home agency.
Finally, with regard to the topic of investments, agencies should note that an adjudicative determination for an individual’s eligibility for access to classified information or eligibility to hold a sensitive position may be impacted negatively should that individual knowingly and directly invest in stocks or business ventures that specifically pertain to marijuana growers and retailers while the cultivation and distribution of marijuana remains illegal under the Controlled Substances Act. Under SEAD 4′ s guidance for personal conduct (Reference B, Guideline E), a decision to invest in an activity, including a marijuana-related business, which the individual knows violates federal law could reflect questionable judgment and an unwillingness to comply with laws, rules, and regulations. That is, it is appropriate for adjudicative personnel to consider whether an individual is knowingly facilitating violations of the Controlled Substances Act by engaging in such investments. On the other hand, if the marijuana-related investment is not direct, such as an investment in a diversified mutual fund that is publicly-traded on a United States exchange, adjudicators should presume that individual did not knowingly invest in a marijuana-related business~ thus, the indirect investment should not be considered relevant to adjudications.
In some instances, the investment itself may be illegal, which is also relevant to SEAD 4′ s guidance for criminal conduct (Reference. B, Guideline J), which by its very nature calls into question an individual’s ability or willingness to comply with laws, rules, and regulations.
However, under the whole-person concept, any mitigating factors should be considered. For example, if an individual holds direct stock investments pertaining to marijuana growers and retailers, divestment of such activity or disassociation of such activity should be considered a mitigating factor when rendering an adjudicative decision.
Heads of agencies are expected to advise their prospective and current workforce to adhere to federal laws prohibiting marijuana use.
Can Federal Employees Use THC or CBD in Legal States?
Encouraging news from the front, my dearest! As of this writing, all but 14 states have surrendered their discriminatory cannabis prohibition laws to some degree, either medicinally or recreationally. Hope.
Encouraging news from the front, my dearest! As of this writing, all but 14 states have surrendered their discriminatory cannabis prohibition laws to some degree, either medicinally or recreationally. Hope leaps in my breast that the Drug War may soon be ended and I shall return to your ample bosom again, to while away our days with sarsaparillas on the porch and playing grabass amongst the crabapples. Alas, the federal government has been stubborn as a left-footed arse about removing delta-9 tetrahydrocannabinol (THC) from its list of Schedule 1 substances. So what about federal government employees? Are they at liberty to partake in states where marijuana consumption is legal? The short answer is NO. Sorry, Charlie! But read the long answer anyway.
They blocked the hentai, too. I’m so sorry, Chuck.
What SAMHSA Says, Goes
The key player here is the Substance Abuse and Mental Health Services Administration, an agency within the US Dept of Health & Human Services. According to themselves, SAMHSA leads public health efforts to advance the behavioral health of the nation and works to reduce the impact of substance abuse and mental illness on America’s communities. In practice, they set the scientific and technical standards for drug testing in the federal government and regulated industries, the Mandatory Guidelines for Workplace Drug Testing. So they accomplish their goals by checks notes making sure nobody like that gets a job? Right then, jolly good, Orwell and all that jazz, carry on.
So what’s the mood like at SAMHSA these days? Well, their top executive has yet to be replaced officially by the Biden administration. Tom Correre is still Acting Assistant Secretary after Dr. Elinore McCance-Katz jumped off the Trump-wreck on January 7th, citing the former president’s incitement of the Capitol riots. We are left to glean any further insight from the former leadership’s actions. The agency’s Know the Risks of Marijuana page was last updated in Dec ’20 and remains a prominent link on their site.
We also know that the Director of Division Workplace Programs there issued a memo days after the 2020 election, when several states expanded their legal marijuana legislation. In it, he advises federal drug program coordinators, medical review officers, and federal partner that no changes have been made to their Mandatory Guidelines. SAMHSA might even double down, cuz word is the feds might switch to hair follicle testing, which can produce a positive THC result for approximately 90 days post-consumption. Apparently they’d rather have you out huffing paint or smoking Spice in your time off, since they only test for cannabis, ecstasy, PCP, coke, heroin, and a couple other opioids (Vicodin and Oxycontin).
Testing Designated Positions
Even after you pass your pre-employment screening, every federal workers is subject to drug testing if there is a “reasonable suspicion” that the employee is using drugs or they have an accident on the job. Well, we all make mistakes. Personally, I won’t even consider an aide for my basement surgical theater if they refuse the ether rag during the interview. Accidents with my “patients” are..bound. to happen.
But the feds also have a policy of Testing Designated Positions (TDP) which requires them to conduct random drug testing on at least 50 percent of their workers annually. But you probably know about this already if you’re subject to it, cuz they let you know in the job description that you’d be subject to randomized testing. SAMHSA issued the last update to these guidelines in 2010. Included are agency heads, political appointees, law enforcement, railroad and aviation personnel, employees with Top Secret security clearance & higher, along with some positions that are at the discretion of their individual agencies- healthcare professionals & drug rehab workers, firefighters, pharmacists, and so on. It’s all a bit overkill. Speaking of- looks like we have a runner, Nurse! Be a dear and grab the net, won’t you? Flicks syringe I do so hope this one’s got some cleverness.
What about CBD?
Cannabidol is federally legal since the 2018 Farm Bill (heralded by Mitch frikkin McConnell of all people). So federal employees can use CBD with no problem, right? Not so fast, Flash! Despite the legality of these products, they contain trace amounts of THC. The standard under federal law states that hemp derived product should contain less than 0.3 percent THC, but the products are poorly regulated and even products with the legal amount can still cause a positive test result if taken in sufficient quantity. NBC news, for instance, reported in 2019 about a DHS agent in north Texas who lost his job by using CBD oil for pain. Many agencies have since issued official statements warning employees about the use of legal, hemp-derived products.
The problem, aside from the tangled state of federal legalization, is that currently available testing methods can only establish the presence of THC. Since weed can stay in the body for weeks after use, there’s no way to tell if they got there from CBD products or THC, while in a legal state or not, on or off duty. The flipside is that if such technology was produced, it’d be turned on private citizens by law enforcement, so what exactly are we arguing for here? I dunno, Buster, I guess the real world is complicated. C’mon, let’s go get some Hardees.