April 10, 2020 Public Contract Law Journal

Seeing Through the Haze: Navigating Veteran Employment Rights in Government Contracting , Medical Marijuana , and the Drug -Free Workplace Act of 1988

by Anastasia Hautanen

Anastasia Hautanen is a third-year law student at The George Washington University Law School. She received her undergraduate degree in Accounting & Legal Studies in Business from the Zarb School of Business at Hofstra University. The author would like to thank Jayna Rust for her guidance in drafting this Note. This Note earned Second Place in the 2019 PCLJ Writing Competition. The author may be contacted at ahautanen@law.gwu.edu.

I.  Introduction

Over the past twenty years, medical marijuana1 has seen an uptick in general societal acceptance.2 Individuals sympathizing with those who suffer from debilitating illnesses, coupled with the recently developed therapeutic uses of the drug, has allowed medical uses of the substance to gain traction.3 Studies show medical marijuana provides relief for many chronic illnesses, including chronic pain, sleep disorders, anxiety, depression, muscle spasms, and arthritis, among others.4

This increase in medical marijuana legislation demonstrates similar support for medical marijuana use.5 Beginning with the passage of California’s Compassionate Use Act in November of 1996, the United States has seen a significant increase in medical-marijuana-related legislation.6 Marijuana is now recognized for medical use in 33 states, as well as the District of Columbia, Guam, Puerto Rico, and the Virgin Islands.7 Generally under these laws, an individual who obtains a qualifying diagnosis8 and prescription from a board-licensed physician is permitted to “possess, consume and cultivate marijuana” without facing legal repercussions under state law.9

The wave of state-based marijuana legislation has promoted the substance’s use as a medical treatment.10 Today, there are nearly two million patients using medical marijuana across the United States.11 California, Maine, and Montana have the highest medical marijuana patient-to-population percentage, with roughly three percent of the population utilizing the drug.12 In 2018, eighty-nine percent of Americans surveyed supported utilizing the substance for medical purposes.13

In addition to the growing acceptance of marijuana use in American culture, medical marijuana has seen strong support from military veterans to address service-related mental and physical conditions.14 In a survey of veterans and military households, eighty-three percent of individuals supported federal legalization of the substance for medical purposes,15 and ninety-two percent supported additional research of the use of the drug in the treatment of conditions common to veterans.16

Former service members generally use medical marijuana to address ailments commonly found in veterans such as anxiety, depression, post-traumatic stress disorder, chronic pain, cancer, and sleep deprivation.17 In comparison to the general population, the rate at which these ailments are found in veterans is disproportionately high due to factors such as combat-related injuries and exposure to toxins.18 For instance, a 2009 study by the Walter Reed Army Medical Center found higher rates of prostate and breast cancer in active duty military members.19 Further, female veterans are between twenty to forty percent more likely to be diagnosed with breast cancer than civilian women.20

Medical marijuana is often seen as an alternative to prescription opioids.21 Even though marijuana remains illegal under federal law and therefore Veterans Affairs (“VA”) doctors cannot legally prescribe it,22 many veterans seek medical marijuana through non-military doctors as it is a less harmful alternative to the cocktail of opioids currently being prescribed by VA doctors.23 In contrast to the plethora of side effects associated with opioid use such as nausea, sedation, and psychological and physical dependence, medical marijuana side effects are classified as low risk.24 Complications and negative side effects associated with medical marijuana use are extremely rare, resulting in many veterans preferring the substance to treat their illnesses instead of the traditionally prescribed opioids.25 The most recent study by the American Legion shows that approximately twenty-two percent of veterans utilized medical marijuana.26

In addition to the lesser complications associated with the use of medical marijuana, veteran medical marijuana use has the potential to address a facet of the opioid crisis.27 The high rate of opioid prescriptions that VA doctors write, amounting to nearly one million in 2014, has contributed to the opioid epidemic the United States is currently facing.28 Opioid abuse is one of the deadliest threats to public health.29 The number of fatal opiate drug overdoses among veterans is double the national average, possibly attributable to the fact that addictive painkillers are often prescribed to veterans with mental illnesses such as PTSD, despite the individual not experiencing physical pain.30 Medical marijuana provides an alternative to prescription opioids, allowing veterans to treat illnesses such as PTSD without the harmful and addictive painkillers that contribute to the larger national opioid epidemic.31

Despite widespread support for the substance and its potential to address a facet of the opioid crisis, veterans who use medical marijuana encounter increasing uncertainty regarding their employment, specifically those employed or seeking employment with federal contractors.32 The majority of federal contractors utilize zero-tolerance drug testing schemes to certify a drug-free workplace33 as required by the Drug Free Workplace Act (DFWA).34 Zero-tolerance drug testing schemes are problematic for those using medical marijuana because by the definition of the policy, any trace of marijuana in a drug screening will result in an adverse employment action.35 Failure to pass a drug screening, used as a condition of employment under a zero-tolerance drug policy,36 could result in a veteran’s termination or disqualification from employment.37

Although individual states have legalized medical marijuana, a contractor cannot accommodate an employee’s medical marijuana use under a zero-tolerance drug testing scheme without fear of violating the DFWA.38 When utilizing a zero-tolerance drug testing scheme to certify compliance with the DFWA, contractors are prevented from accommodating veterans who use medical marijuana because of marijuana’s federally illegal status.39 Therefore, medical marijuana users are given no employment protections under federal law, because a contractor can penalize users under the zero-tolerance drug testing policy.40 Despite an employee legally using the substance for valid medical purposes under state law, contractors have the unencumbered ability to take adverse actions against medical marijuana users under these strict drug testing policies.41

A contractor’s inability to accommodate medical marijuana use is particularly problematic for veterans seeking employment with federal contractors.42 On average, approximately forty-four percent of total new hires in the federal government are veterans.43 This high percentage is attributed to veterans’ preference hiring practices — policies implemented to dramatically increase a veteran’s likelihood of being hired by the federal government.44 Specifically in the context of government contracts, contractors are required to employ affirmative action plans to hire and maintain veteran employees under the Vietnam Era Veterans’ Readjustment Assistance Act (the Veterans’ Act).45 However, contractors that implement zero-tolerance drug testing schemes do not accommodate veterans using medical marijuana, who are effectively disqualified or terminated, contrary to the affirmative-action requirements.46 

This Note analyzes the inability for a contractor to comply with the affirmative-action requirements of the Veterans’ Act while utilizing a zero-tolerance drug testing scheme to certify compliance with the DFWA. Part II will analyze medical marijuana’s current federal legal landscape in contrast to state legislation to depict the lack of protections for veteran employees working under a federal government contract. Part III depicts the inherent tensions that the implementation of zero-tolerance drug testing policies has created between the DFWA and the Veterans’ Act to highlight a contractor’s inability to meet the affirmative-action requirements while simultaneously certifying compliance with the DFWA under this drug-testing scheme. Part IV will propose two different solutions that the President or individual con- tractors could implement to resolve this tension and promote contractor compliance with the affirmative-action requirements of the Veterans’ Act.

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