Oftentimes, what an employee does when they are “off the clock” is none of their employer’s business. However, this is not always the case when one’s employer is the federal government. For example, if a federal employee has been granted a security clearance, that employee’s decision to engage in heavy gambling, their struggle with substance abuse, and even where they choose to travel could serve as matters of concern for their employer. And, if a federal employee holds a position held to a higher standard, such as a law enforcement or judge position, their off-duty conduct, especially if illegal, can result in disciplinary action, up to and including removal.
However, off-duty conduct need not be illegal to result in discipline. This reality was underscored recently when the U.S. Forest Service explicitly reminded its agency employees that they are prohibited from using marijuana, despite many state laws that have legalized marijuana use. The Forest Service also warned against the risk of using CBD products that are federally unregulated due to the risk that such products could cause federal employees to fail random drug tests. Because Cannabidiol is not regulated at the federal level, some CBD products are inaccurately labeled as being free from Tetrahydrocannabinol, yet contain high levels of this illegal substance that shows up on drug tests.
Federal employees who fail drug tests may be subjected to disciplinary action. And, while most federal employees who have passed their probationary period have a right to appeal adverse actions, avoiding disciplinary action, in the first place, is ideal whenever possible.
State vs. Federal Law
In recent years, many states have legalized marijuana for recreational and/or medicinal use, subject to various restrictions. However, federal law still classifies marijuana as an illegal drug. In matters of federal employment law, when state law and federal law conflict, federal law tends to serve as the ruling authority. This means that, even if you live in a state where marijuana use is legal, if you are a federal employee, your employer may view this drug as an illegal substance and ban it. As a result, being caught using this drug could endanger your ability to remain employed, depending on the circumstances of your unique situation.
The U.S. Forest Service, like many other federal agencies (including the Environmental Protection Agency), has explicitly told its employees that they are required to remain “drug-free” while they are both on-duty and off-duty. If a federal employee has been flagged for reasonable suspicion drug testing, marijuana will be among the drugs tested for. And, like many other agency employees, U.S. Forest Service employees who test positive for marijuana use may be subjected to mandatory consequences, such as disciplinary action up to and including removal from federal service.
Evolving Federal Approach to Employee Marijuana Use
There are signs that the federal government may not choose to crack down on marijuana use among employees forever. Not only has the nation’s largest federal employee union adopted a resolution calling for the termination of policies that penalize federal employees for responsible off-the-clock marijuana use, in states where such use is legal, but influential bodies within the federal government, itself also seem increasingly supportive of such approaches.
For example, both the House Appropriations Committee leadership and the Senate Intelligence Committee have recently taken steps to make responsible use of marijuana by employees less consequential if that use is restricted to states where such use is legal. Similarly, the Director of National Intelligence has spoken out against the rejection of security clearance applications for individuals whose past marijuana use and/or cannabis stock investments imperil their ability to receive such clearance. Even the Federal Bureau of Investigations (FBI) is now only automatically disqualifying applicants from employment if they admit to marijuana use within the past 12 months, not the past three years before applying for employment with the agency.
Yet, even as the federal government is likely to continue evolving slowly on this issue, until the responsible use of marijuana is no longer prohibited in federal employment, it is important to understand the potential consequences of thwarting such policies.
Contact a Knowledgeable Federal Employment Lawyer Today
If you have concerns about being subjected to investigation or disciplinary action because of activities you engage in while you were off the clock or off duty, connect with the respected federal employment lawyers at Avery Dooley & Noone, LLP, today to learn more about your rights and options. Once we learn about your specific concerns, we can provide you with personalized legal guidance so that you can make informed decisions about your situation. Call (617) 489-5300 or contact us online today to learn more. We look forward to speaking with you.