The Fight to End Firing of Federal Workers for Cannabis Use
The largest union representing federal government employees is flexing its muscles to stop employers firing workers for cannabis use in states where it is legal. Many workers, at risk of losing their jobs through a drug test despite not breaking state laws, are likely to be grateful for its efforts.
As Marijuana Moment reported, in June the American Federation of Government Employees (AFGE) approved a resolution to “Support deleting responsible off-duty marijuana usage from suitability criteria” for “non- safety-sensitive, non-national-security positions.” It also expresses the AFGE’s support for the Marijuana Opportunity Reinvestment and Expungement (MORE) Act—a federal legalization bill that has passed the House twice already.
The AFGE, affiliated with the AFL-CIO, is the largest union of federal employees, representing 700,000 federal and DC government workers.
“I was thrilled to see the AFGE come out in support of ending pre-employment and off-duty cannabis testing with limited exceptions,” Maritza Perez, director the Office of Federal Affairs at the Drug Policy Alliance, told Filter. DPA is lobbying for federal cannabis reform.
“It is quite significant for the largest federal workers union to take this position, which as of right now stands in opposition to the official federal government’s stance,” she continued. “My hope is that their support helps us move this issue forward to finally end indiscriminate drug testing of federal employees.”
It may be surprising that even if you live in a fully cannabis-legal state—there are now 19 of them, plus the District of Columbia—your use is not fully protected, depending on your employment status. And that’s definitely the case for the estimated 2.1 million federal government civilian workers. A positive drug test for marijuana can legally cause you to be rejected when applying for a job, or fired from one you already have.
“There’s a lot of misconceptions among the federal government and employers generally that cannabis use is detrimental to productivity.”
This discrimination dates back over 35 years to a President Reagan executive action, which stated that federal employees are “required to refrain from the use of illegal drugs,” and that those who do not “are not suitable for Federal employment”.
“There’s a lot of misconceptions among the federal government and employers generally that cannabis use is detrimental to productivity or can potentially increase worker safety issues, which research has consistently shown is not the case—in fact the opposite of that,” Morgan Fox, political director of NORML, told Filter.
Fox added that these federal guidelines are creating a brain drain of talented people who can’t or don’t want to work for the government.
“Some years ago,” he said, “the FBI stopped making past cannabis use a disqualifier for employment because they couldn’t get cybersecurity experts to apply and agree to work for them, because [often] these are people who have consumed cannabis.”
He relayed a similar story of a medical marijuana patient in Maine who develops sophisticated sonar technology to prevent terrorist attacks—but is unable to work in government research.
The issue also made national headlines last year, in the early days of the Biden administration, when the Daily Beast reported, “Dozens of young White House staffers have been suspended, asked to resign, or placed in a remote work program due to past marijuana use.” The White House scrambled to clarify—partially—that no one was fired for “marijuana usage from years ago,” nor for “casual or infrequent use during the prior 12 months,” but did confirm that five employees were terminated.
Federal government agencies have inconsistent policies. The Federal Bureau of Investigation (FBI) disqualifies job candidates who have used cannabis in the past year. The Department of Transportation (DOT) requires “safety-sensitive” workers to be removed from their duties for testing positive for THC—and doesn’t even fully protect CBD use, which is federally legal. And the Environmental Protection Agency (EPA) flatly bans its workers from using cannabis (the logic behind why cannabis use would make someone less willing to protect the environment really needs explaining).
So it’s a complicated picture. “I’m not aware of any documentation that shows a breakdown of which agencies have which policies, unfortunately,” Fox said. “That would be incredibly useful, and I’m sure every agency bends the rules if they have a particular target hire or a very valuable employee they want to keep on board.”
Even if one of these legalization bills passes, it’s not certain how much things will change for federal workers.
With the MORE Act’s movement in the House, Senate Democrats have responded by introducing the Cannabis Administration and Opportunity Act (CAOA). Both bills address this issue in different ways.
The Senate bill says that federal employees would not be drug tested for cannabis—unless an agency head specifically requests it in writing for law enforcement officers, or workers are responsible for national security or, broadly, “protection of life, property, public health, or public safety.” The House bill, surprisingly, has much weaker protections—it simply allows the secretary of Health and Human Services to choose whether or not federal employees will be drug tested for cannabis.
So even if one of these legalization bills passes, it’s not certain how much things will change for federal workers. Under the Senate bill, for example, could an EPA or CDC worker who sits behind a computer all day be banned from cannabis use because their job involves “public health or safety”?
“That is a major concern we have,” Fox agreed. “The exact language does not require any standard of proof for how cannabis consumption on off hours or past consumption could impact the ability of a person to effectively do their job. There is a window that would allow for discrimination against cannabis users.”
The AFGE can’t change the rules unilaterally. But it is now one more big voice in the room that may help get federal legalization over the line. To truly end prohibition for federal workers, however—and the lifelong negative impacts of being fired or banned from employment—Congress must make sure federal employers can’t twist the law to deny workers the right to consume cannabis.