Recently introduced legislation would remove potential barriers for prospective federal employees who have used marijuana in the past.
The Dismantling Outdated Obstacles and Barriers to Individual Employment (DOOBIE) Act (S. 4711) would codify in federal law the current guidance from the Office of Personnel Management (OPM) on past marijuana use with respect to federal job applicants. It was introduced by Senator Gary Peters (D-MI) and has no co-sponsors as of the time of this writing.
Marijuana is currently legal in many states but remains illegal under federal law. However, OPM issued new hiring guidelines for federal agencies in 2021 which said that past marijuana use would not automatically disqualify individuals from getting a job with the federal government.
Then acting OPM Director Kathleen McGettigan said:
Agencies must base their suitability determinations on the presence or absence of certain factors set forth in 5 C.F.R. 731.202(b). At least two of these factors could be implicated by an individual’s use or possession of marijuana: (1) illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and (2) criminal or dishonest conduct. However, OPM’s suitability regulations do not permit agencies to automatically find individuals unsuitable for federal employment based on either factor. Rather, when agencies consider the suitability or fitness of an applicant or appointee for a position, the individual’s conduct must be evaluated on a case-by-case basis to determine the impact, if any, to the integrity and the efficiency of the Government.
FedSmith author Ralph Smith wrote about the OPM guidance at the time:
According to new guidance from the federal government’s personnel agency, the new administration has found a way to get around the inconvenience of a federal law perhaps because “the times they are a-changin’” and many states have already kept up with our cultural changes more than the federal government.
He added:
Emphasizing the existence of restrictions on drugs, including marijuana, is not the purpose of the latest guidance. Instead, the guidance is essentially advising agencies on how to get around the restrictions regarding marijuana and federal employment.
Peters obviously agrees with OPM, but rather than just have the government keep skirting a law on its books, his bill would change the law so that it coincides with OPM’s hiring guidelines which he says would provided needed clarity for prospective federal employees. He said that the misalignment between OPM’s guidance, current federal law, state laws, and actual federal hiring practices limits the federal government’s ability to compete for top talent because of the barriers created by the varying laws and hiring practices.
The legislation would prohibit federal agencies from using past marijuana use as the sole factor in determining employment suitability, qualification standards, or eligibility for security clearances and federal credentials.
Peters said in a statement:
As we work to build a highly skilled federal workforce, it’s crucial that the federal government modernizes its hiring practices to reflect evolving laws and societal norms. My bill will take the commonsense step to align federal statutes with existing agency guidance and ensure that talented individuals are not automatically disqualified from service solely due to past marijuana use. By providing this much-needed clarity for agencies and applicants, we will ensure that the federal government can recruit and retain the best and brightest to serve our nation.
Similar legislation has been introduced in the past but ultimately failed to become law.
In 2018, former Congressman Charlie Crist (D-FL) introduced legislation that would have prevented the government from denying employment or making federal employees “subject to any other adverse personnel action” if they had a positive drug test and lived in a state where it was legal.
In 2023, Congressman Jamie Raskin (D-MD) introduced a bill that would prevent current or past marijuana use from disqualifying individuals from the opportunity to seek federal employment or be granted security clearances. The last activity on the bill was on September 20, 2023, when it was ordered reported out of committee for consideration before the full House of Representatives.
