Cannabis News of Note for the Week:
Cannabis Wire: A federal entity wants to change how it approaches cannabis consumption in its vetting process. Here’s what commenters have to say. (paywalled newsletter, full text below)
Cannabis Reports of Note for the Week:
Cannabis Wire: A federal entity wants to change how it approaches cannabis consumption in its vetting process. Here’s what commenters have to say.
Back in November, as we reported in this newsletter at the time, the United States Office of Personnel Management (OPM) sought public comment on something called a Personnel Vetting Questionnaire (PVQ), according to a notice published in the Federal Register at the time.
This proposed PVQ was, as the agency put it, an effort to “streamline multiple existing information collections” that will be “used for making trust determinations associated with an individual’s initial and ongoing suitability or fitness for Federal employment, fitness for contract employment, eligibility to hold a sensitive position or for access to classified information, or eligibility for physical and logical access to federally controlled facilities or information systems.”
The questionnaire would include questions about “Drug Activity” as well as about “Marijuana and Cannabis-Derivative Use.” On cannabis, specifically, the PVQ proposed treating cannabis differently than other federally illegal substances.
The notice read: “Questions regarding illegal drug use on the PVQ are divided into separate areas to distinguish between use of marijuana or cannabis derivatives containing THC and use of other illegal drugs or controlled substances, in recognition of changing societal norms. In addition, the PVQ has a more limited scope of questioning regarding past use of marijuana in comparison to other illegal drugs. Currently, use of marijuana by federal employees is prohibited, while past use of marijuana by applicants is evaluated on a case by-case basis when agencies make trust determinations. Given the legal landscape at the state level regarding use of marijuana, distinguishing between past marijuana use and use of other illegal drugs on the PVQ may improve the pool of applicants for federal employee and federal contractor positions.”
Fast forward to today.
A new notice in the Federal Register, intended to notify the public that the agency is moving forward in seeking White House approval for this PVQ, includes a summary of the public comment that came in regarding the “collection of information regarding past use of marijuana.”
The summary is fascinating, especially with regard to a specific comment that the agency chose to quote directly and concur with at the end of its summary.
Here is the summary, in full:
“Nine comments were received that expressed support for OPM’s approach in separating questions regarding marijuana use from those regarding other controlled substances and limiting the timeframe for reporting past use of marijuana. Of these, six comments recommended OPM further limit or eliminate inquiry regarding marijuana use. Five comments opposed OPM’s approach.
OPM did not change its approach to the collection of information regarding use of marijuana as a result of the comments received. As OPM explained in the 60-day Notice, the proposed PVQ takes into account changes in the legal landscape and societal norms regarding marijuana use.
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. 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. […] OPM has a duty to ensure that the Federal Government workforce accurately represents America.’”
Several comments on the cannabis language came in from specific federal agencies and major employers.
As you’ll see below, some commenters just flag areas for clarity, while others, namely Department of Homeland Security (DHS)/U.S. Immigration and Customs Enforcement (ICE), largely disagree with the PVQ’s approach.
• Lockheed Martin, for example, wrote: “May be beneficial for adjudicators to have insight to medical/medical professional prescribed uses of marijuana and cannabis-derivative products.” And, “The national security subject population is required to report stocks/investments in marijuana-related businesses. There is no current question in this section which addresses this requirement.”
• Boeing commented on language that suggests “marijuana or a cannabis derivative” is “any cannabis-derived substance containing greater than .3% tetrahydrocannabinol (THC)” does not include “a product that did not exceed .3% THC such as most products containing CBD oil.”
Boeing wrote: “This appears to be the first U.S. Government document that specifies a threshold (i.e. 0.3%.) for THC in cannabis derived products. The problem is that most consumer products are not FDA tested or labeled. Therefore, as an alternative suggestion, careful consideration should instead be given to describe and distinguish the types of products of U.S. Government concern and their federal legality.”
As written, Boeing continues, this language puts both candidates and the employer “in the precarious position of fielding inquiries regarding product contents from clearance candidates who expect to be given authoritative guidance.”
• DHS/ICE wrote: “Abstaining from marijuana use for 91 days does not provide clear and affirmative evidence of rehabilitation when considering an extended duration of use (e.g. if an applicant used marijuana weekly from January 2017 to May 2022, and completed the form in September 2022, this would not be sufficient presence of rehabilitation). Additionally, marijuana use is still illegal under Federal law, and as this is a form representing the U.S. Government, it should be congruent. It is up to the adjudicator to evaluate the circumstances surrounding the use to determine if it presents a risk to the position/agency/national security.”
• The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) flagged the use of the word “prescription” with regard to cannabis, noting that “some think that prescription use makes it legal.” (Indeed, the use of “prescription” isn’t even allowed in states where medical cannabis is legal, as it implies federal approval.)