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As more states move to legalize marijuana, the Director of National Intelligence (DNI) said federal employers should not categorically reject applicants for prior use security clearances and should do so. show discretion when it comes to those investing in cannabis in their equity portfolios.

DNI Avril Haines’ new memo, which follows earlier guidelines approved under the Obama administration, says although cannabis is legalized in states across the country, its use by people in positions requiring a national security clearance remains an area of ​​concern that must be taken into account in the application process.

That said, the internal advisory that was distributed to nearly 100 agencies late last month appears to provide additional leeway when it comes to past marijuana use by applicants and employees.

Haines wants federal agencies to remind civilian, military, and contractor personnel eligible for access to classified information or eligible for sensitive positions of “the importance of continued compliance with federal laws and policies” that currently ban cannabis .

Illegal use of controlled substances, she wrote, “may raise safety concerns regarding an individual’s reliability and reliability to access classified information or to occupy a sensitive position, as well as their ability to or its willingness to comply with laws, rules and regulations ”.

However, the document, which was first reported by ClearanceJobs on Monday, says that while federal law on marijuana and a person’s past use “remains relevant”, it is “not determinative” of decisions on “eligibility for access to information classified or eligibility to occupy a sensitive position “.

This appears to be a notable political development, as ClearanceJobs reported that there is typically a one to two year abstinence requirement for prospective federal workers in need of security clearance in various agencies. The policy could be further changed in the future, Haines noted, if there is a “change in federal law regarding marijuana use.”

For now, federal job arbitrators should look at other factors beyond just past marijuana use to see if this specific “concern” should really determine their eligibility for employment, the memo said. These external factors could include the frequency of use and the likelihood that a person will continue to use marijuana.

“Additionally, in light of long-standing federal law and policy prohibiting the use of illegal drugs while in a sensitive position or holding a security clearance, agencies are encouraged to educate future security employees. national law that they must refrain from any future use of marijuana from the outset. the national security verification process, which begins after the person signs the certification contained in the Standard Form 86 (SF-86), Questionnaire for National Security Positions.

This means that there appears to be a message from the DNI that even recent marijuana use can be ignored as long as the person refrains from subsequent use after completing a specific national security form.

Interestingly, unlike an old DNI note on the subject which was signed by former DNI James Clapper in 2014, this new document also speaks of investments linked to cannabis.

He says eligibility to access classified information or to hold a sensitive position “may be adversely affected if that person knowingly and directly invests in stocks or business ventures that specifically concern marijuana growers and retailers then. that the cultivation and distribution of marijuana remain illegal ”. under federal law.

People who have not knowingly invested in the cannabis space, for example by placing their money in mutual funds where an outside advisor could have invested in the marijuana market, should not automatically be penalized by them. federal agencies, DNI said.

For indirect investments in marijuana, “the arbitrators must assume that the person did not knowingly invest in a marijuana-related business; thus, indirect investment should not be considered relevant for auctions.

In other words, DNI provides specific investment guidance regarding the marijuana market, a sign of the industry’s continued standardization, even under the aegis of the federal ban.

That said, Haines notes that a “decision to invest in a business, including a marijuana-related business, which the individual knows to violate federal law could reflect questionable judgment and a reluctance to comply with the laws. laws, rules and regulations “.

Additionally, Haines discussed the use of CBD among federal workers requiring security clearance. The official acknowledged that the non-intoxicating cannabinoid may be federally legal when derived from hemp under the 2018 Farm Bill, but its use could still “be relevant to judgments.”

Additionally, agencies should be aware that the Federal Drug Administration does not certify THC levels in CBD products, so the THC percentage cannot be guaranteed, which is an issue when using a CBD product. under federal law, ”the memo said. “Studies have shown that some CBD products exceed the 0.3% THC threshold for hemp, despite advertising labels. “

“Therefore, there is a risk that the use of these products will nonetheless result in high enough levels of THC to result in a positive marijuana test under agency-administered employment programs or random drug testing programs. drugs. If an individual tests positive, they will be investigated according to specific guidelines established by their home agency. “

This is generally in line with policies in place in several federal agencies since hemp was legalized at the federal level. Although some agencies have enacted stricter rules on CBD.

The Defense Ministry, for example, has made it clear that CBD is prohibited for the military.

The Air Force issued a notice in 2019 stating that its members are prohibited from using the complex.

The Navy has told its ranks that they are prohibited from using CBD regardless of its legal status.

And the Coast Guard said in 2019 that sailors cannot use marijuana or visit legal state clinics.

NASA said CBD products could contain unauthorized concentrations of THC that could jeopardize jobs if employees fail a drug test.

The Substance Abuse and Mental Health Services Administration issued guidelines for federal agency drug program coordinators in 2019, expressing concern about excess THC in CBD products, which appears to have prompted different departments to clarify their rules.

The Department of Transportation took a different approach in 2020, saying in a notice it would not test drivers for CBD.

For its part, the Drug Enforcement Administration continues to enforce its policy of automatically disqualifying applicants who have used marijuana in the previous three years prior to applying.

And while the Biden administration instituted a policy of granting waivers to some workers who admit to having previously used cannabis, it has come under fire from advocates following reports it has fired or punished dozens of people. employees who are honest about their history with marijuana.

White House press secretary Jen Psaki has previously tried to downplay the fallout, with little success, and her office issued a statement in March saying no one has been fired for “using marijuana ago. years “, and no one has been fired” due to occasional circumstances or infrequent use in the previous 12 months.

Meanwhile, the FBI updated its hiring policies last year to ensure that applicants are only automatically disqualified from joining the agency if they admit to using marijuana within the following year. their candidacy. Previously, potential agency employees could not have used cannabis in the past three years.

A powerful congressional committee released a report over the summer urging federal agencies to reconsider policies that result in the dismissal of employees who legally use marijuana in accordance with state law.

Read the DNI note on the following federal guidelines for the use of marijuana:

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Photo courtesy of Mike Latimer.

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