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Expanding Legalization of Marijuana Creates New Challenges for Government Contractors

Published by on June 5, 2015

As of spring 2015, 23 states and the District of Columbia have legalized adult use of marijuana for medical purposes. In addition, D.C. and four states – Colorado, Washington, Alaska and Oregon – have legalized recreational use of marijuana as well. In May, the federal Office of Personnel Management (OPM) released a formal notification indicating […]

As of spring 2015, 23 states and the District of Columbia have legalized adult use of marijuana for medical purposes. In addition, D.C. and four states – Colorado, Washington, Alaska and Oregon – have legalized recreational use of marijuana as well. In May, the federal Office of Personnel Management (OPM) released a formal notification indicating that for the nation’s 4.1 million federal civilian and military employees, possession or use of marijuana remains classified as a crime.

The memorandum reiterates details of Executive Order 12564, signed in 1986 by President Ronald Reagan, which mandates that:

“Federal employees are required to refrain from the use of illegal drugs; the use of illegal drugs by Federal employees, whether on or off duty, is contrary to the efficiency of the service; and persons who use illegal drugs are not suitable for Federal employment.”

Further restrictions are noted for personnel who hold security clearances or who work in security-sensitive positions.

What does this mean for the additional 2.1 million employees who are employed by federal government contractors?

Under the Drug-Free Workplace Act, federal contractors are required to prohibit the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance by employees in their workplace as a condition of employment, and marijuana is listed as a Schedule 1 controlled substance under federal law.

Government contractors also know that the law requires them to implement drug-free workplace policies and that they must discipline employees who violate these policies, with responses up to and including termination. The law does make room for contractor employees to participate in a drug abuse assistance or rehabilitation program, and traditionally that discretion has been applied at the employer level.

While the federal restrictions remain clearly and firmly established, the risk in this increasingly confusing environment falls on the government contractor as an employer. In some states, medical marijuana users who were terminated by their employers for violating drug-free workplace policies have filed suit against the employer. It is technically possible for an employer to be sued by an employee (or ex-employee) precisely for strictly interpreting and applying the requirements of federal law in order to protect its contracts and, ultimately, the jobs of its workers.

The good news is that widespread coverage in the media, especially in the Washington, D.C. region, has consistently emphasized the fact that federal employees and contractors need to follow the dictates of federal law, and presumably, personnel engaged in a career of federal service (whether directly as or as contractor personnel) will understand and abide by these principals as a matter of character and professionalism.

With marijuana legalization now encompassing localities that are high-profile hubs for federal agencies and contractors (such as the District of Columbia and Colorado), it is no longer prudent to assume the best or hope for it either.

Some steps that government contractors would be wise to take in this new environment include the following:

1. Publish and distribute communications that reach all employees, to reiterate the company’s drug-free workplace policies and its legal requirement to adhere to these policies as a federal contractor.

2. Review existing drug-free workplace policies to ensure compliance with current state and federal laws, including the Drug-Free Workplace Act.

3. Evaluate the provisions in your drug-free workplace policy and your company’s history (if any) in applying these provisions, especially as it relates to random testing, employee admission of possession or use, and how the company responds – ranging from counseling on one end of the disciplinary spectrum, to immediate termination on the other. Consistency in application is essential and must be emphasized for all managers.

4. Understand the distinction between an employee’s working on a contract vs. being terminated, in response to a positive test. It may be sensible in certain situations to consider moving an employee who has tested positive outside of federal contracting activities if you intend to provide a non-termination option in response to the situation.

5. In cases where your company is a prime contractor, review any flow-down clauses and alert your subcontractors of the critical need to reiterate federal drug policy as it applies to all personnel throughout the contract.

6. Make sure that your drug-free workplace policy is adequately updated to address any situations that could specifically arise in jurisdictions that have legalized either medical, or medical and recreational use of marijuana.

7. If you don’t already, it is strongly recommended that you employ a third-party screening service for all employee drug-testing activities, so that the company has clear and unambiguous separation between testing results and management decisions. In some jurisdictions, this may actually be required.

Laconic Lookout: Federal contractors are caught between the standards and expectations of the federal government and the shifting dynamics of state and local law when it comes to maintaining a drug-free workplace. Clear and unambiguous policies, backed by clear communication to all employees and consistent application when issues arise, is the essential step that all contractors should take both to maintain compliance with their contracts and provide clarity for their employees.

 

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