Dear Potheads, You Can Work for the U.S. Government, Maybe

Working at 18F was one of the highlights of my professional career. I’m constantly trying to convince friends and colleagues to give government service a try: for software developers, few other jobs come close to the same level of challenge and positive impact. It’s hugely rewarding work.

But there’s one huge blocker that keeps many in the tech industry from thinking about applying: marijuana use. It’s a very weird time for pot users in the U.S.: it’s legal in many states, but still illegal federally. It’s both a crime and also highly normalized. 45% of the US population has used marijuana; among people 18-25, that percentage is nearly 50%¹.

People who are interested in Federal jobs know there’s a background check, and expect to be asked about drug use. So people who want to work for the Federal government but use marijuana are in a weird spot. If they use it in a state where it’s legalized, will their potential employer care? People who use cannabis medicinally are in an even more confusing place: if it’s a prescribed medication does that “count”? Is that use considered private medical information, or do they have to disclose that fact in a background check?

It’s nearly impossible to find clear advice on this. Since marijuana use is still in legal limbo, Federal agencies are reluctant to go on the record with an official policy. They don’t want to have to say that anyone with a history of marijuana use can’t apply – that’d rule out nearly half of all adults! But they likewise can’t go on the record saying it’s okay, since as far as Feds are concerned, it’s still illegal. And individuals are reluctant to talk publicly about marijuana use and federal service because they don’t want to admit to something that could come back to bite them.

It seems like marijuana use, even in the past, is a disqualifier for Federal employment. But the truth is … it depends.

Marijuana use, especially past use, is not automatically a disqualifier for every position. It never was, “not automatically a disqualifier” only recently (February 2021) became official policy. However, interpretation and implementation has been, and still is, quite complex. Results vary widely.

For the sake of people who have used marijuana and are thinking about public service, I’ll try to explain the state of things, and what (I think) you should expect if you apply for a government job and disclose a past use of marijuana.

Now, look: I’m not anything approaching an expert here. I’m not a lawyer, or an HR professional, or even a current government employee. There’s a substantial chance I’m wrong, maybe in a big way, and almost certainly about how this works at some individual agencies. I think this is mostly correct, though, and since nobody else is talking about this in public… I thought I should.

My experience

My experience is a good place to start: in some ways it’s typical, but also illustrates the inconsistency at play.

I applied for a job at 18F in 2016. At the time, I lived in California, had a medical use card, and used marijuana legally following California’s regulations. I had also illegally used pot recreationally about a decade earlier, in college. During my background check, I disclosed this use. I was offered the job, but before getting the offer, I was asked to sign a letter stating that my use was in the past and that I wouldn’t use marijuana while employed at 18F (on or off the clock).

I thought this was reasonable if a bit silly (I wasn’t asked anything about alcohol use, or any other prescription medication I might be taking). I later found out, however, that this was far from official policy; it seems like my HR contact was more or less improvising. I’ve spoken to two people who work in or around HR in the federal government. One told me these letters are standard, and that if I applied again today I’d be asked to sign a similar letter. But the second person I spoke to was very surprised to hear about this letter business; they’d never heard of letters like this.

They’re certainly not un-common: I know several others who were asked to sign similar letters. However, I know several more who disclosed similar past use in their interviews and were hired without being asked to sign those letters. And I know some people who disclosed similar use and were rejected.

I honored this agreement and abstained while at 18F, but I know of many people who continued to use pot while employed by the US Government without consequence. I know of at least one technologist who was terminated for marijuana use (I don’t know if he signed any sort of agreement), and I’ve heard of a few others who were similarly terminated.

Confused yet?

I think I’ve managed to piece together a coherent picture of what’s going on. This is based on my experience, conversations with a dozen or so other Federal employees, including some who work in HR or related areas. I’ll try to explain what I think is going on, and what to expect if you apply for a government job with a history of marijuana use.

The official policy

Part of the reason this is so inconsistent is that until very recently there wasn’t any sort of clear consistent policy. The Office of Personnel Management (OPM), the agency that sets employment policy for the Federal government, would only say that marijuana was illegal, but not clearly state what that meant in practice. OPM stopped short of insisting that marijuana use was automatically a disqualifier but likewise wouldn’t say that it wasn’t. It was a sort of “don’t ask, don’t tell” situation. This left HR departments, and individual employees, free to “improvise”, with predictably unpredictable results.

This is, by and large, still the case, more on that below. However, we do now have some official policy. In February 2021, OPM issued official guidance in a memo: Assessing the Suitability/Fitness of Applicants or Appointees on the Basis of Marijuana Use (PDF).

The bottom line is:

OPM’s suitability regulations regarding illegal drug use do not permit agencies to automatically find individuals unsuitable for federal service on the basis of marijuana use prior to appointment. Even where an individual has illegally used marijuana without evidence of substantial rehabilitation, agencies cannot find an individual unsuitable unless there is a nexus between the conduct and the “integrity or . . . efficiency of the service.”

(Emphasis added.)

In other words: the official policy is that marijuana use alone isn’t a disqualifier, but is a disqualifier if there’s a “nexus” between the drug use and other behavior that might be disqualifying, such as dishonesty or criminal behavior (see the memo for a more complete list). OPM also says:

Past marijuana use, including recently discontinued marijuana use, should be viewed differently from ongoing marijuana use. […] A commitment to not use marijuana going forward may represent evidence of rehabilitation which may be mitigating, even in cases of recent use, when considering the totality of the information regarding the individual’s use.

Reading this memo, two things seem clear to me:

1. The spirit of the memo seems to be a policy that would make what I experienced well within official guidelines. If you’ve used marijuana in the past, in a non-abusive way, and agree to stop while employed by the US Government: you’re all good.

2. The letter of the memo has enough loopholes to drive a tank through. It’s full of conditional language that can be read in various ways. There’s plenty that’s left up to individual judgment. The language of “rehabilitation” in the memo is especially problematic. This is language from the so-called War on Drugs, and there, as here, it’s a completely non-scientific concept that allows some drug use to be justified and other drug use to be criminalized.

Why policy and implementation differ

So this will continue to be left up to individual judgment, so let’s talk for a minute about who makes that judgment.

When you apply for a position in the federal government, you’ll have a background check and an interview. You might think that this interview would be done by HR, or maybe by some Federal employees (the FBI, maybe?) – but that’s not true. It’s contracted out: OPM has contracts with private security firms, and it’s those contractors that will meet with you and ask you those background check questions. These contractors then make a recommendation as to your suitability for government employment.

In theory, this is just a recommendation. OPM makes the final judgment, and in theory could overrule the recommendation. In practice, this hardly ever happens. OPM would be taking an enormous political risk; if it came to light they offered a job after a “failed” background check, it could be a political scandal.

So in practice: the person who decides if you’ll get offered that job or not is … just some randomly assigned contractor. If they have progressive views on marijuana use, or if they’ve read this OPM memo and want to comply with the spirit, or if they’re just lazy and don’t want to do the paperwork for a rejection: you’ll get an offer. If they have regressive views, or decide you aren’t sufficiently “rehabilitated” (whatever that means), you won’t get an offer.

You may recall the story of Biden administration staffers who were asked to resign after disclosing pot use, despite being told during the transition that past marijuana use wouldn’t disqualify them. What made that story confusing is that dozens of other staffers who also admitted past drug use – including the Vice President – were not asked to leave. I have no inside information, but I suspect this inconsistency was at the root. Those who got more progressive background investigators slid by; those who drew the short straw were forced out. And/or, for the most critical staff – like the Vice President – the administration was willing to overrule the recommendation and hire them anyway.

It’s also almost certainly the case that the level of security clearance matters: security clearances probably are significantly more strict about drug use than the standard “Public Trust” background investigation required for employment.

Summing up

So to sum up: if you’ve used marijuana in the past, and apply for a government job, here’s some advice:

• Don’t lie about it. Lying to your background investigator isn’t just a bad idea: it’s literally a crime. If you’re going to apply, be prepared to disclose.
• Expect to be asked to commit to ceasing use during your employment. You might not be, but it seems like it’s increasingly common. If you can’t keep that commitment, I’d recommend not applying.
• People who use cannabis medically and want to apply for a government job should probably consult an employment lawyer: that case is complex enough that I don’t even know how to begin addressing it.
• Expect a small but significant chance of being rejected, particularly if your job requires a security clearance, or is at an agency not known for being particularly progressive (i.e. you probably shouldn’t set your sights on the DEA).

Hope this helps clarify an unclear situation. I think it’s worth it: building software for the government is fantastic and worth muddling through a weird situation. It seems like the government is moving in a more progressive direction, which is nice to see.