A federal agent, who worked a large portion of his almost 30 years as a federal employee with the Department of Homeland Security, was recently fired. The reason for termination: use of CBD oil. Isn’t CBD oil legal? In most cases, yes. However, federal agencies are lashing out at workers who use the product. CBD Following is recent guidance from the Office of the Director of National Intelligence addressing the impact of using marijuana or CBD-related products and CBD has exploded on the market, with people using it for relaxation, pain relief — even better sleep. But though it is legal to use, the News4 I-Team found it…
Federal agent loses job after using CBD for chronic pain
A federal agent, who worked a large portion of his almost 30 years as a federal employee with the Department of Homeland Security, was recently fired. The reason for termination: use of CBD oil.
Isn’t CBD oil legal?
In most cases, yes. However, federal agencies are lashing out at workers who use the product. CBD products often contain tetrahydrocannabinol (THC). As a result, use of the product can trigger a positive drug test for use of marijuana.
Conventional drug testing cannot distinguish between THC from marijuana use or CBD products. This is because conventional testing generally shows that THC is present in the sample but does not provide information on the amount. As a result, those who have a very small amount, as found in CBD products, test positive in the same way those who are using marijuana, which has a much higher level of THC, would get a positive result.
What happens of a federal agent has a positive drug test?
Federal agencies generally have a no-tolerance policy when it comes to THC. Any presence of the amount in a sample, regardless of the quantity, could result in termination.
Is this a common problem?
A spokesperson for the Federal Law Enforcement Officers Association stated a “couple dozen” federal enforcement officers are having trouble due to use of CBD products. Data for other federal positions would likely indicate the issue is much larger.
What options are available for federal employees facing termination?
Those who find themselves facing an investigation, discipline and potential termination are wise to act to protect their interests. An attorney experienced in federal employment matters can review the situation and discuss your options.
Guidance Issued on Marijuana and Federal Employee Security Clearances
Following is recent guidance from the Office of the Director of National Intelligence addressing the impact of using marijuana or CBD-related products and investing in marijuana-related businesses where they are allowed by state law. (Note: The acronym SecEA means “Security Executive Agent”—that is, the Director of National Intelligence—and SEAD 4 refers to “Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines.”)
Based on current federal law, I provide additional adjudicative guidance herein on three topics that have generated ongoing inquiries from federal agencies: 1) recency of recreational marijuana use; 2) use of cannabidiol (CBD) products such as CBD oils; and 3) investment by persons in marijuana-related businesses.
With regard to the first topic, agencies are instructed that prior recreational marijuana use by an individual may be relevant to adjudications but not determinative. The SecEA has provided direction in SEAD 4 to agencies that requires them to use a “whole-person concept.” This requires adjudicators to carefully weigh a number of variables in an individual’s life to determine whether that individual’s behavior raises a security concern, if at all, and whether that concern has been mitigated such that the individual may now receive a favorable adjudicative determination. Relevant mitigations 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. Additionally, in light of the long-standing federal law and policy prohibiting illegal drug use while occupying a sensitive position or holding a security clearance, agencies are encouraged to advise prospective national security workforce employees that they should refrain from any future marijuana use upon initiation of the national security vetting process, which commences once the individual signs the certification contained in the Standard Form 86 (SF-86), Questionnaire for National Security Positions.
With respect to the use of CBD products, agencies should be aware that using these cannabis derivatives may be relevant to adjudications in accordance with SEAD 4. Although the passage of the Agricultural Improvement Act of2018 excluded hemp from the definition of marijuana within the Controlled Substances Act, products containing greater than a 0.3 percent concentration of delta-9 tetrahydrocannabinol (THC), a psychoactive ingredient in marijuana, do not meet the definition of “hemp.” Accordingly, products labeled as hemp-derived that contain greater than 0.3 percent THC continue to meet the legal definition of marijuana, and therefore remain illegal to use under federal law and policy. Additionally, agencies should be aware that the Federal Drug Administration does not certify levels of THC in CBD products, so the percentage of THC cannot be guaranteed, thus posing a concern pertaining to the use of a CBD product under federal law. Studies have shown that some CBD products exceed the 0.3 percent THC threshold for hemp, notwithstanding advertising labels (Reference F). Therefore, there is a risk that using these products may nonetheless cause sufficiently high levels of THC to result in a positive marijuana test under agency-administered employment or random drug testing programs. Should an individual test positive, they will be subject to an investigation under specific guidelines established by their home agency.
Finally, with regard to the topic of investments, agencies should note that an adjudicative determination for an individual’s eligibility for access to classified information or eligibility to hold a sensitive position may be impacted negatively should that individual knowingly and directly invest in stocks or business ventures that specifically pertain to marijuana growers and retailers while the cultivation and distribution of marijuana remains illegal under the Controlled Substances Act. Under SEAD 4′ s guidance for personal conduct (Reference B, Guideline E), a decision to invest in an activity, including a marijuana-related business, which the individual knows violates federal law could reflect questionable judgment and an unwillingness to comply with laws, rules, and regulations. That is, it is appropriate for adjudicative personnel to consider whether an individual is knowingly facilitating violations of the Controlled Substances Act by engaging in such investments. On the other hand, if the marijuana-related investment is not direct, such as an investment in a diversified mutual fund that is publicly-traded on a United States exchange, adjudicators should presume that individual did not knowingly invest in a marijuana-related business~ thus, the indirect investment should not be considered relevant to adjudications.
In some instances, the investment itself may be illegal, which is also relevant to SEAD 4′ s guidance for criminal conduct (Reference. B, Guideline J), which by its very nature calls into question an individual’s ability or willingness to comply with laws, rules, and regulations.
However, under the whole-person concept, any mitigating factors should be considered. For example, if an individual holds direct stock investments pertaining to marijuana growers and retailers, divestment of such activity or disassociation of such activity should be considered a mitigating factor when rendering an adjudicative decision.
Heads of agencies are expected to advise their prospective and current workforce to adhere to federal laws prohibiting marijuana use.
Warning to Federal Employees and Those With Security Clearance: CBD Use Puts Jobs in Jeopardy
CBD has exploded on the market, with people using it for relaxation, pain relief — even better sleep. But though it is legal to use, the News4 I-Team found it could still cost you your job.
“I didn’t worry about it a bit — never gave it a second thought,” said one former federal law enforcement officer who purchased CBD oil over the counter to treat severe back pain.
He said the store clerk told him the product contained no THC and was perfectly safe. He placed the liquid CBD under his tongue as instructed. Three days later, he was randomly selected for a drug test at work.
“And then boom, I was told that I had tested positive for THC,” he said. “It’s horrible. It’s a horrible feeling.”
THC is the psychoactive compound in marijuana, which is prohibited for use by all federal employees. CBD also comes from the cannabis plant but is a different cannabinoid that does not make users high. Federal law allows hemp-derived CBD to contain trace amounts of THC.
“I’m like, ‘It wasn’t marijuana, guys.’ But I’m caught between a rock and hard place,” he said. “They can’t prove that I smoked marijuana, and I can’t prove that I didn’t.”
He asked the I-Team to conceal his identity, fearing that speaking publicly could jeopardize his retirement benefits. He chose to retire earlier this year after his boss revoked his security clearance and suspended him indefinitely.
“It just makes you feel like you’re a bad person, you wasted your career,” said the agent, who had worked in law enforcement for nearly three decades.
“It is an eye opener for a lot of people,” said Don Mihalek, executive director of the Federal Law Enforcement Officers Association.
Dozens of his members around the country have found themselves in similar situations, Mihalek said.
“It’s a new thing that’s out there, and I don’t think a lot of agencies have really gotten to the point of addressing how they’re going to handle that,” Mihalek said.
Neither has the drug testing industry, said Dr. Michael Kosnett, a medical toxicologist at the University of Colorado.
“The issue right now is the panel of testing,” he said. “Even with the sophisticated confirmatory testing, it doesn’t look for the metabolite of CBD. It only looks for the metabolite of THC.”
The testing industry likely will evolve over time to better deal with the rise in use of CBD, Kosnett said. Employers have no way to tell whether the THC in someone’s body originated from CBD or marijuana.
“It may not at all be enough to cause the person to feel high or intoxicated but it’s enough to have the metabolite of THC appear in their urine,” Kosnett said.
Plus, the CBD industry is largely unregulated, so users have no way to know what’s really in the products they’re buying. One study found nearly 70 percent were inconsistent with their labeling, including some with hidden THC, which can accumulate in your body over time.
“Unless a person really knows and has confidence in the purity of that particular brand they have, they could have an unfortunate surprise on a urine drug test,” Kosnett said.
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This summer, the federal division that oversees drug testing for federal employees sent a memo directing agencies “to inform applicants and employees of the risk that using such products may result in a positive marijuana test.” The memo reminded employers “there is no legitimate medical explanation for a marijuana-positive test result other than a verified prescription” for a few FDA-approved drugs.
The Department of Defense has specifically prohibited CBD use — even though Congress passed a law approving it for everyone else.
“It’s not fair. It’s completely unfair,” said Nina French, managing partner of Current Consulting Group, a firm that specializes in all areas of substance abuse testing.
Public and private employers are frustrated and unsure of how to adapt, French said.
“The problem is the times have changed before the tests have. And so now everybody’s going to be caught in the middle until technology and law catches up,” French said.
Employers use drug tests to limit liability and lower insurance costs for workplace accidents, French said. There are roughly 40 million lab-based drug tests in the U.S. each year.
“I can honestly not think of anything in our history that we have managed to botch to this degree,” French said.
The federal agent said he has never used illegal drugs but has no way to prove that. He could have spent years and drained his savings fighting to save his job but decided to retire instead.
“If it were me and this was a person who came into my office, I would look into challenging it,” said Suzanne Summerlin, general counsel for the National Federation of Federal Employees.
Summerlin thinks CBD users could argue there was no intent to break the rules. She worries the federal policy could keep agencies from hiring good candidates or cause them to lose good employees who were just misinformed.
“Certainly, moving forward, we are going to be letting folks know that these situations are happening,” Summerlin told the I-Team.
Both unions say if your job is one that drug tests randomly — after an accident, for security clearance or any other reason — it’s best to avoid CBD products all together.
“Our advice is if you’re going to do anything medicinal, make sure you get a doctor’s prescription,” Mihalek said.
The federal law enforcement officer told the I-Team he contacted his agency’s director in Washington but was told there was nothing he could do.
“If I had known I was going to test positive for this stuff, I would’ve never taken it,” he said. “I mean, look what I’ve had to go through.”
Reported by Jodie Fleischer, produced by Katie Leslie, and shot and edited by Steve Jones.