By Peter Casciano, Esq.
Some of my clients that work for the federal government have experienced the difficult dilemma of being prescribed marijuana by their physician, but have been unable to use it due to their employer.
In a rare act of bipartisanship by Congress, a recent bill has been proposed by Congressman Charlie Crist (D-FL) and co-sponsored by Congressman Drew Ferguson (R-GA). The bill, known as The Fairness in Federal Drug Testing Under State Laws Act, would bar the government from issuing an adverse action against an employee with a positive drug test who lives in a state with laws legalizing marijuana in some capacity. Second, the bill would not allow the government to deny employment on the basis of a positive drug test either.
This bill would not provide protection to a situation where there was probable cause to believe the individual is under the influence of marijuana at work. Another exception is for those seeking employment at positions requiring a top secret clearance or access to a highly sensitive program.
As of the writing of this blog, nine states and the District of Columbia have legalized marijuana for both recreational and medical use: Alaska, California, Colorado, Washington, DC, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington. Many more states have legalized the use of medicinal marijuana only.
Marijuana has been prescribed by physicians to treat a wide array of illnesses, including headaches, cancer, nerve pain, glaucoma, multiple sclerosis, chemotherapy side effects, HIV, seizure disorders, and Crohn’s disease. Click here to learn more about the uses of medical marijuana.
Unfortunately, federal employees, especially those considering applying for disability retirement, must be sensitive to this tricky issue. Because The Fairness in Federal Drug Testing Under State Laws Act is only a proposed bill, the current official policy of the federal government is that the DOJ is to prosecute marijuana-related activities irrespective of state law.
What to Do If You Are a Federal Worker with a Medical Marijuana Prescription
I highly recommend federal employees consult with an attorney if your physician prescribes marijuana to treat your condition. The enforcement of this law and policy can vary from agency to agency. Elaine Chao, Secretary of Transportation, recently reinforced the idea that regardless of state law, marijuana cannot be legally prescribed since it is still listed as a controlled substance under the Controlled Substances Act.
Until the federal government and the states pass laws more in concert with one another, federal employees, VA patients, and disability retirement annuitants must continue to navigate this tricky landscape carefully. For private sector workers applying to the federal government for disability benefits, the guidance is less clear. The official policy regarding medicinal marijuana use for social security disability applicants is still articulated in Policy Interpretation Ruling SSR 13-2p. This ruling has been on the books since March 2013, and basically provides that a claimant must prove that drug addiction or alcoholism is not a contributing factor material to the question of disability.
The bottom line is that the medical community continues to prescribe marijuana more widely to the patients suffering from a large spectrum of illnesses. We face the unfortunate situation currently where that prescription, obtained in good faith, could cause issues with your disability case. If you have questions on this issue, please contact me for a free consultation.
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