In recent years, states have moved quickly to pass laws legalizing marijuana. To date, 21 states have legalized recreational marijuana and an additional 16 states have authorized marijuana for medical use.
Despite these state law changes, since 1970, marijuana has been classified as a Schedule I “controlled substance” under the federal Controlled Substances Act, 21 U.S.C. §§ 801-971 (“CSA”). This means that even the simple possession of marijuana is a violation of federal law.
Why is this important? SMACNA contractors performing work on military bases and other facilities that require a security clearance may be faced with workforce challenges. In particular, a worker’s current and prior marijuana use can disqualify the worker from obtaining a security clearance or cause a worker to lose an existing security clearance.
The SF-86 Form
Before obtaining a security clearance, workers must complete the Standard Form 86, Questionnaire for National Security Positions (“SF-86”). Section 23.1 of SF-86 asks the following: “In the last seven (7) years, have you illegally used any drugs or controlled substances? Use of a drug or controlled substance includes injecting, snorting, inhaling, swallowing, experimenting with or otherwise consuming any drug or controlled substance.”
The instructions in Section 23 make clear that the question relates to federal law: “The following questions pertain to the illegal use of drugs or controlled substances or drug or controlled substance activity in accordance with federal laws, even though permissible under state laws.” SF-86 also makes clear that “The U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony, which may result in fines and/or up to five (5) years imprisonment.”
Marijuana Use May Be a Disqualifying Security Concern
The National Security Adjudicative Guidelines (“NSAG”) articulates the security concern for the illegal use of drugs:
The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802.
In 2014, the Director of National Intelligence issued guidance making clear that state marijuana laws do not authorize citizens to violate federal law, including the Controlled Substances Act. The Director explained:
An individual’s disregard of federal law pertaining to the use, sale or manufacture of marijuana remains adjudicatively relevant in national security determinations. The adjudicative authority must determine if the use of, or involvement with, marijuana raises questions about the individual’s judgment, reliability, trustworthiness and willingness to comply with law, rules and regulations, including federal laws, when making eligibility decisions of persons proposed for, or occupying, sensitive national security positions.
As the Director explained, “agencies continue to be prohibited from granting or renewing a security clearance to an unlawful user of a controlled substance, which includes marijuana.”
Guidance on Marijuana Use, CBD and Marijuana Investments
In December 2021, the Director of National Intelligence issued guidance in response to the influx of state laws sanctioning recreational and medical marijuana use.
As an initial matter, the Director emphasized that federal law remains unchanged with respect to marijuana. As the Director explained, “the illegal use or misuse of controlled substances can raise security concerns about an individual’s reliability and trustworthiness to access classified information or to hold a sensitive position, as well as their ability or willingness to comply with laws, rules and regulations.”
With respect to prior marijuana use, prior recreational marijuana use is relevant, but not determinative, to adjudications of eligibility. In evaluating an applicant’s prior marijuana use, adjudicators use the “whole-person concept” to determine whether that individual’s behavior raises a security concern. Relevant mitigating conditions include, but are not limited to, “frequency of use and whether the individual can demonstrate that future use is unlikely to recur, including by signing an attestation or other such appropriate mitigation.”
The Director also opined on use of CBD oil. Specifically, although the 2018 Agriculture Improvement Act excluded hemp with a delta-9 tetrahydrocannabinol (“THC”) concentration of not more than 0.3% from the definition of marijuana within the CSA, the Director noted that products are often mislabeled and can have greater than 0.3% THC. As a result, workers risk violating the CSA when they use products labeled CBD oil and will be subject to investigation in the event that they test positive for marijuana.
While the 2021 guidance does not substantively change the policy for adjudicating security clearances, it is a helpful reminder that marijuana use remains relevant (although not determinative) in security clearance decisions.
Contractors who perform work that requires a security clearance would be well advised to pay attention to these requirements and educate their workforce on these requirements prior to completing their SF-86.
For interested contractors, SMACNA is preparing a white paper on the issue of marijuana and security clearance.
Grant Collins is an MSBA-certified specialist in both traditional labor law and employment law at Felhaber Larson. Grant’s traditional labor practice involves preparing for and serving as chief spokesperson for collective bargaining, advising employers on their rights and obligations under collective bargaining agreements and the National Labor Relations Act (NLRA) and representing employers in grievance arbitrations and unfair labor practice charges before the National Labor Relations Board. Reach him at email@example.com or through www.felhaber.com.