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Public Contract Law Journal

Public Contract Law Journal Vol. 49, No. 2

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

Anastasia Hautanen


  • Describes the current landscape of federal and state laws relating to medical marijuana.
  • Analyzes the interaction between the Drug Free Workplace Act, drug testing, and the Vietnam Era Veterans Readjustment Assistance Act.
  • Proposes two potential solutions for remedying the tension between the Drug Free Workplace Act and the Vietnam Era Veterans Readjustment Assistance Act.
Seeing Through the Haze: Navigating Veteran Employment Rights in Government Contracting, Medical Marijuana, and the Drug-Free Workplace Act of 1988
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I. Introduction

Over the past twenty years, medical marijuana has seen an uptick in general societal acceptance. 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. Studies show medical marijuana provides relief for many chronic illnesses, including chronic pain, sleep disorders, anxiety, depression, muscle spasms, and arthritis, among others.

This increase in medical marijuana legislation demonstrates similar support for medical marijuana use. 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. Marijuana is now recognized for medical use in 33 states, as well as the District of Columbia, Guam, Puerto Rico, and the Virgin Islands. Generally under these laws, an individual who obtains a qualifying diagnosis and prescription from a board-licensed physician is permitted to “possess, consume and cultivate marijuana” without facing legal repercussions under state law.

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

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. In a survey of veterans and military households, eighty-three percent of individuals supported federal legalization of the substance for medical purposes, and ninety-two percent supported additional research of the use of the drug in the treatment of conditions common to veterans.

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. 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. 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. Further, female veterans are between twenty to forty percent more likely to be diagnosed with breast cancer than civilian women.

Medical marijuana is often seen as an alternative to prescription opioids. Even though marijuana remains illegal under federal law and therefore Veterans Affairs (“VA”) doctors cannot legally prescribe it, 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. 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. 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. The most recent study by the American Legion shows that approximately twenty-two percent of veterans utilized medical marijuana.

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. 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. Opioid abuse is one of the deadliest threats to public health. 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. 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.

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. The majority of federal contractors utilize zero-tolerance drug testing schemes to certify a drug-free workplaceas required by the Drug Free Workplace Act (DFWA). 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. Failure to pass a drug screening, used as a condition of employment under a zero-tolerance drug policy, could result in a veteran’s termination or disqualification from employment.

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. 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. 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. 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.

A contractor’s inability to accommodate medical marijuana use is particularly problematic for veterans seeking employment with federal contractors. On average, approximately forty-four percent of total new hires in the federal government are veterans. 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. 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). 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.

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.

II. The Current Legal Landscape of Medical Marijuana

The recent explosion of marijuana-related legislation in states across the country poses several questions regarding whether the federal government can enforce criminal penalties against those within states where marijuana has been decriminalized. Though this specific issue is not analyzed in this Note, understanding the dichotomy between the legal landscape of marijuana on the federal versus the state level is important to understand how this federal landscape affects the application of other laws, such as the DFWA or the Veterans’ Act. For example, though in many states it is legal to use medical marijuana, an employee may not actively use the substance on a federal contractor’s workplace because marijuana remains federally illegal. In other words, the application of related federal laws is based on the federally illegal status of marijuana, despite individual state legalization.

A. Federal Laws

1. The Controlled Substances Act of 1970

The Controlled Substances Act classifies marijuana as a Schedule I drug, meaning the U.S. Department of Justice (“DoJ”) has statutory authority to prosecute marijuana-related violations under federal law. Schedule I drugs are defined as having a “high potential for abuse,” “no currently accepted medical use in treatment,” and “a lack of accepted safety for use of the drug or other substance under medical supervision.” The Schedule I classification of marijuana federally criminalizes the manufacturing, distribution, or possession of any amount of marijuana.

Despite shifting attitudes towards marijuana and scientific studies acknowledging the substance’s several medical uses, marijuana remains at a Schedule I classification alongside a variety of drugs including heroin and LSD. Therefore, the federal government does not recognize marijuana to have any medical purpose. As many marijuana supporters argue, cocaine is classified as a Schedule II drug, meaning that Congress has deemed cocaine to have more medical value than marijuana. Yet, cocaine kills over 4,000 Americans a year, in contrast to marijuana, which has no reported deaths directly related to substance use. Further, the Schedule I classification means proving marijuana’s medical value through research and development efforts is made difficult because there is no leniency granted to researchers who handle the controlled substance.

Of the several attempts to reschedule marijuana since the initial attempt in 1972, all efforts have failed. Though small-scale studies have repeatedly shown marijuana’s medical benefits, many opponents of reclassification argue that a large-scale clinical trial of the substance is necessary to warrant a rescheduling, which would ultimately allow the medical use of marijuana to be legal under federal law. Unfortunately, as noted above, due to the strict control regulations that a Schedule I classification imposes, these clinical trials are difficult to commence.

Though the DoJ has previously declined to expend resources on marijuana-related violations under the Controlled Substances Act, because marijuana is listed as a Schedule I substance, federal employers do not accommodate medical marijuana use in the workplace under the DFWA. Though an argument has surfaced that the Americans with Disabilities Act (“ADA”) provides a form of redress for medical-marijuana-using employees who face employment discrimination, the statutory language of the ADA explicitly excludes protections for users of illegal substances. As marijuana is federally considered an illegal substance, marijuana users are not afforded protections or accommodations under the ADA for their medical marijuana use. Therefore, due to the Controlled Substances Act’s classification, contractors have no incentive to accommodate medical marijuana users.

2. The Drug Free Workplace Act

The DFWA, when enacted in 1988, represented the federal government’s initiative to prevent drug abuse in the workplace. Supporters of this legislation argued that the bill was necessary to protect workplace safety, decrease the likelihood of defective products, and generally increase the productivity of workers. Specifically, supporters argued that the strength of the nation was diminished due to the lesser productivity associated with drug use in the workplace. Congress argued that this problem was dangerous enough to warrant a necessary and urgent response via an anti-drug initiative.

The DFWA was implemented in the Federal Acquisition Regulation (“FAR”) to expand the anti-drug initiative to the workplaces of contractors. The DFWA clause of the FAR requires all federal contract recipients to establish and educate employees of a drug-free awareness program, notify employees that this policy must be followed as a condition of their employment, and the employer must further certify a good faith effort to maintain this program. In addition to maintaining a drug-free workplace, contracted employees must notify the contracting officer of any conviction under a criminal drug statute that occurs in the workplace. Further, by accepting award of a contract, the contractor agrees “not to engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance” while performing the contract.

By mandating education of the effects of drug abuse in the workplace and notification and certification requirements, the federal government encourages productivity and safety in contractor workplaces by using federal funding as a powerful mechanism of encouragement. Failure to comply with the DFWA carries penalties upwards of suspension and debarmentfrom federal contracting. The federal government pays out billions of dollars in contracts every year. Accordingly, any employer receiving money via contracts has a strong incentive to comply with governmental requirements in order to maintain this advantageous relationship.

B. State Medical Marijuana Legislation

Though marijuana is classified as a Schedule I substance that is federally illegal, many state legislatures have passed legislation decriminalizing the use of the substance for medical purposes. Marijuana is recognized for medical use in 33 states, in addition to the District of Columbia, Guam, Puerto Rico, and the Virgin Islands. Based on the substantial increase of medical marijuana legislation over the past 20 years, there is a high probability that additional states will adopt similar statutes.

Though using marijuana for medical purposes is legal in the majority of states, the relevant legislation often does not address the relationship between medical marijuana use and the workplace. Generally, state statutes only mention whether or not an employer is allowed to prohibit the use of the substance on the employer’s physical worksite. For example, New Hampshire’s medical marijuana statute states: “Nothing in this chapter shall exempt any person from arrest or prosecution for . . . [b]eing under the influence of cannabis while . . . [i]n his or her place of employment, without the written permission of the employer.” In addition to explicit workplace prohibitions of medical marijuana, several states are silent on general accommodation requirements for the substance’s users. The potential need for accommodations has become increasingly prevalent as positive drug screening for marijuana jumped by seventy-five percent in the United States over the past four years. The rise in positive drug tests has left many employers uncertain regarding their obligations to accommodate medical marijuana users.

State legislation addressing medical marijuana and its relationship to employer accommodation obligations can be broken down into four categories:

(1) . . . jurisdiction[s] that explicitly require[] an employer to attempt to make reasonable accommodations of medical marijuana use; (2) jurisdictions where the marijuana statute is silent on employer accommodation obligations but permit the employer to prohibit marijuana use at the worksite; (3) jurisdictions where an employer is expressly not required to accommodate the use of marijuana in the workplace; and (4) . . . jurisdiction[s] that [are] silent on accommodation obligations and an employer’s ability to prohibit marijuana use at the worksite.

In addition to the aforementioned categories, there are a few jurisdictions that have a federal-hardship exception, meaning the statute does not require an employer to accommodate medical marijuana users if there is a present risk of losing financial gain or federal licensing benefits.

The jurisdictions within the first category clearly outline an accommodation framework for medical marijuana users in the employment context. The only jurisdiction that falls within this category is Nevada. Nevada explicitly requires an employer to reasonably accommodate medical marijuana use. An accommodation must be made if an employee has a valid registration card prescribed by a doctor, and if the accommodation would not present an undue hardship on the employer or prohibit the employee from completing the employee’s job responsibilities.

Though this statute provides the most protection for medical marijuana users in comparison to other state legislation, there are several inherent problems with Nevada’s statute that leaves swaths of medical marijuana users in the state unprotected. These problems include a failure to define an “employee,” lack of an established enforcement mechanism, and dual accommodation standards. Despite the Nevada statute’s problems, it explicitly provides some employment protections to medical marijuana users, unlike the majority of state laws that are silent on the matter or explicitly do not require accommodations. Nevada’s statute provides some guidance as to how medical marijuana and its users fit into the workplace, in contrast to the majority of states in which this issue remains unclear and potentially problematic for both employers and employees.

III. Conflicting Policy Initiatives: An Analysis of the Drug Free Workplace Act, Drug Testing, & the Vietnam Era Veterans Readjustment Assistance Act

Although Nevada’s statute establishes a framework for employment accommodation of medical marijuana users, this framework is not possible for federal contractors to utilize in the context of veteran medical marijuana users. The lack of current accommodation ability creates an inherent tension between the DFWA and the Veterans’ Act when a contractor implements a zero-tolerance drug testing policy. A contractor utilizing a zero-tolerance drug testing policy to certify compliance with the DFWA cannot hire or continue to employ veteran medical marijuana users, as those users would inevitably fail a drug screening. The inability to hire or continue to employ veteran medical marijuana users resulting from the widespread implementation of these drug testing policies violates the affirmative action requirements under the Veterans’ Act. Failure to implement veteran affirmative action policies, or in the alternative to certify compliance with the DFWA, could result in weighty consequences such as suspension or debarment from federal contracting.

Though it is possible for a contractor to simultaneously comply with both statutes, the implementation of zero-tolerance drug testing policies forces contractors to choose between following a zero-tolerance policy or knowingly employing a veteran medical marijuana user. While it is possible to comply with both statutes, the unnecessary utilization of zero-tolerance drug testing policies to certify compliance with the DFWA prevents this from being a reality. As contractors condition a veteran’s employment on a positive drug screening, a contractor’s utilization of these zero-tolerance testing schemes creates an inherent tension between the typical application of the DFWA and the requirements of the Veterans’ Act, as a contractor cannot meet the requirements of both.

A. Drug-Free Workplace Act and Drug Testing: The Unnecessary Implementation of Zero-Tolerance Drug Testing Policies Prevents Employment of Veterans in Federal Contracting

The DFWA represented a congressional effort to address and bring change to the pervasive issue of drug abuse in the workplace. The issue of drug abuse came to the national forefront when President Richard Nixon announced a “War on Drugs,” resulting in increased enforcement efforts and harsher sentencing on drug-related offenses. The War on Drugs continued during President Ronald Reagan’s administration throughout the 1980s. In an effort to advance the War on Drugs initiative, President Reagan issued Executive Order 12564, ordering all federal employees to refrain from illegal drug use. In this Order, President Reagan argued that this action was necessary because the “profits from illegal drugs provide the single greatest source of income for organized crime, fuel violent street crime, and otherwise contribute to the breakdown of our society,” therefore adversely affecting the overall War on Drugs. The DWFA was the congressional response to this Order.

Congressional concerns regarding workplace productivity and safety fueled the enactment of this legislation. At the time of passage, committee members argued that federal employees and contractors under the influence of drugs had an adverse effect on workplace safety and productivity, and often tended to make more mistakes, decreasing overall productivity by approximately $60 billion. Further, it was argued that individuals using marijuana had impaired coordination, slower reaction times, and were inattentive. The Chamber of Commerce testified that drug users in the workplace were four times more likely to be involved in an accident during business hours than non-users. The increasing liabilities and economic losses associated with workplace drug use prompted the passage of this statute.

Despite the monetary considerations that assisted the statute’s passage, the DFWA was enacted with the primary objective to educate and rehabilitate drug users within the workplace to promote workplace productivity and safety. Congress noted that the government was “involved in a great effort to educate citizens of the physical and psychological consequences of drug abuse,” by requiring employers to create a “drug-free awareness program aimed at educating employees about the consequences of drug abuse . . . and the rehabilitative services available for users.”

Contrary to the DFWA’s strong emphasis on education, many contractors use a mandatory drug testing scheme as a condition of employment to certify that they are maintaining a drug-free workplace. The utilization of zero-tolerance drug testing policies is used as an assurance to the government of the employer’s compliance with the DFWA, because the testing definitively proves that no employees are under the influence of drugs in the workplace. This certification is used to guarantee the employers’ federal contracts are not at risk.

The DFWA does not actually require drug testing, though the majority of contractors employ drug testing as a means to ensure compliance with the statute. In fact, the statute only mandates an employer to certify, in good faith, that the workplace is drug-free. The legislative history of the statute supports this, noting that imposing drug testing to ensure compliance would be highly inappropriate, as Congress does not intend employers to “take on law enforcement or police functions.”

Congress explicitly stated drug testing by employers is an inappropriate law enforcement function, yet some employers argue that drug testing is necessary to address the safety concerns of the DFWA, because it is as an effective method of identifying employees that are impaired in the workplace. However, the imposition of drug testing in the medical marijuana context does not actually effectuate a safer workplace, because the traditional methods of analysis fail to accurately determine whether or not an employee is currently under the influence of the substance. An individual using medical marijuana can test positive for drug use, even if the individual did not use the substance in the past twenty-four hours, because THC, the active chemical in marijuana, has a slow absorption rate. An individual can use marijuana several days or even weeks before the test and still have a positive reading, despite any side effects of the substance subsiding long before the test itself. As traditional drug testing is inefficient to determine whether an individual is currently impaired by medical marijuana, the imposition of a zero-tolerance drug testing scheme to certify compliance with the DFWA is an extremely overbroad policy that does not achieve the end goal of a safer, drug-free workplace.

Furthermore, a zero-tolerance drug testing scheme penalizes those who use drugs in an at-home context, contrary to the statute’s educative and rehabilitative intent. The statute does not grant employers the authority to discipline medical marijuana users for utilizing the benefits of the substance outside of the workplace. Imposing consequences such as adverse personnel actions for at-home drug use is fundamentally at odds with the legislative intent of Congress. The inherent regulation of at-home drug use that occurs as a result of mandatory drug testing allows an employer to engage in the law enforcement activities that Congress specifically noted was not the purpose of the statute.

As the law makes no mention of drug use outside of the workplace, it arguably permits an employer to knowingly accept an employee who uses marijuana to treat a medical ailment. If the substance is not used at the physical workplace a contractor will remain in compliance. An employer could still certify compliance with the DFWA in good faith even if an employee tests positive for marijuana, so long as the use of the substance was not occurring on the physical worksite. The unnecessary imposition of drug testing under the statute, coupled with the ineffective nature of these tests in determining current impairment of employees, suggests this condition on employment unduly hinders the employment of medical marijuana users.

The imposition of a zero-tolerance drug testing policy to certify compliance with the DFWA unnecessarily prevents employers from hiring or continuing to employ veterans who use medical marijuana. A veteran who uses medical marijuana would be unable to obtain or maintain employment with a contractor who uses this policy, as they would inevitably test positive for marijuana use. As drug testing is not required to certify compliance with the DFWA, a contractor implementing these tests is unnecessarily preventing the employment of veterans who use medical marijuana — in direct conflict with veterans’ preference hiring requirements.

B. Veteran Affirmative Action Requirements in Federal Contracting under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974

In addition to maintaining a drug-free workplace, federal contractors are required to enact an affirmative action plan for hiring and promoting the employment of veterans. However, contractors’ imposition of zero-tolerance drug testing policies prevents many employers from fulfilling this requirement. The Veterans’ Act requires any party contracting with the United States for the purpose of a procurement contract to take affirmative action to employ and advance in employment qualified veterans. In addition to a contractor’s requirement to affirmatively act to employ qualified veterans, the Veterans’ Act mandates each contractor “immediately list . . . employment openings with the appropriate employment service delivery system,” give qualified veterans priority in referral to position openings, and “each such employment service delivery system shall provide a list of . . . employment openings to States, political subdivisions of States, or any private entities or organizations under contract to carry out employment, training, and placement services under chapter 41 of this title.” To further this policy, contractors under the Veterans’ Act are required to report annually to the Secretary of Labor the total number of employees of the contractor, the total number of new employees hired during the year, the number of those who are covered veterans, and the maximum and minimum numbers of the contractor’s employees during the year. A veteran who believes a contractor has failed to comply with this requirement may file a complaint with the Secretary of Labor.

Veteran hiring requirements follow a long history of support for veteran employment. Affirmative action requirements became prevalent after President Nixon restructured the American military in the early 1970s, which made finding a policy for veteran employment protections critical, as the reduction in military personnel created a significant influx of veterans transitioning into civilian life. This influx, coupled with the general societal animosity towards Vietnam veterans, prompted President Nixon’s Executive Order action to assist veterans in gaining and maintaining employment.

President Nixon’s Executive Order 11,598 established that it was the nation’s policy to assist a veteran’s transition back into civilian life by requiring federal agencies and any subsidiaries to list employment openings with the employment service system. President Nixon urged the need for pro-veteran policies, as veterans often encounter severe difficulties when transitioning back into civilian life. Preparing to enter or rejoin the workforce is just one of many challenges faced by veterans. For instance, a veteran may never have applied for a civilian job or prepared a resume in anticipation for a job search. Understanding this challenge, President Nixon emphasized that it was the country’s duty to provide assistance to veterans attempting to resume their civilian lives, as the country ought to appreciate a veteran’s sacrifice and service. Congress subsequently enacted the Veterans’ Act with an additional requirement that employment offices give priority referrals to veterans for employment openings, as President Nixon’s Order did not have the anticipated effects on position listings.

The Office of Federal Contractor Compliance Programs (OFCCP), a subpart of the U.S. Department of Labor’s Employment Standards Administration, enforces the Veterans’ Act’s affirmative action requirements. Employment disparities between veteran and non-veteran employees evidence the need for OFCCP’s affirmative action enforcement efforts. For instance, male veterans earn 2.7% less than non-veterans, and female veterans earn 6.3% more than non-veterans. The distinction in pay differentials is just one example of the substantial obstacles veterans face when finding employment post-military service.

OFCCP has several penalties available at its discretion to utilize upon finding a contractor in violation of the Veterans’ Act, ranging from monetary damages such as compensation adjustments to suspension or debarment from future federal contracts. A contractor can violate the Veterans’ Act in several ways – including failure to affirmatively act to employ qualified veterans or failure to meet reporting and referral requirements. In fiscal year 2018, OFCCP found fourteen violations of the Veterans’ Act, comprising of 14.1% of total violations the office oversees.

OFCCP serves an important function in enforcing affirmative action requirements under the Veterans’ Act for contractors to remedy the substantial disparities between veteran and non-veteran employees. However, the disparities cannot be remedied if veterans are being turned away from employment or terminated under a zero-tolerance drug-testing scheme due to their medical marijuana use.

C. A Contractor’s Choice: The Inherent Tension between Zero-Tolerance Drug Testing Policies under the DFWA and the Veterans’ Act

The implementation of zero-tolerance drug testing policies to certify compliance with the DFWA has created an inherent tension between the DFWA and the Veterans’ Act, because veteran medical marijuana users are unable to satisfy the negative drug test requirement of this policy. Federal legislative attempts have tried and failed to carve out medical and civil protections for medical marijuana use amongst veterans. The Veterans Medical Marijuana Safe Harbor Act, sponsored by Senators Brian Schatz (D-HI) and Tim Kaine (D-VA), proposed to legalize the “use, possess[ion], or transport [of] medical marijuana” in accordance with the laws of the State in which the use, possession, or transport occurs. Senator Cory Gardner (R-CO) pushed for an amendment, the Strengthening the Tenth Amendment Entrusting States Act, to a criminal justice reform bill that requires the federal government to respect state medical marijuana laws in the context of veteran marijuana use. Though these efforts fall short of full federal legalization of the drug and showcase Congress’s unwillingness to even address the reclassification of marijuana, these small changes are positive steps towards reconciling Congress’s views with current public opinion.

Despite recent attempts to change the federal government’s stance, marijuana remains illegal, posing several barriers for veterans who use medical marijuana seeking to obtain or maintain employment. The effects of federal criminalization are especially felt in federal contracting, where the majority of contractors certify compliance with the DFWA through the use of zero-tolerance drug testing. These drug testing policies are often used as a condition of employment, meaning that an employer can take adverse action against an employee who violates the policy — including non-selection of an applicant, suspension, or termination.

The inherent tension between the DFWA and the affirmative action requirements of the Veterans’ Act is created by the utilization of these zero-tolerance drug testing schemes. Although veterans’ preference is required under the Veterans’ Act, a contractor is much less likely to hire a veteran who cannot pass a drug test for fear of violating the DFWA. As violation of the DFWA carries such weighty penalties, such as suspension and debarment from federal contracting, the current system utilized by contractors incentivizes the contractor to maintain its responsible status rather than promoting the Veterans’ Act policy of hiring veterans. The inherent tension created by the implementation of drug testing policies results in a contractor’s inability to simultaneously meet the requirements of both statutes in the context of medical marijuana.

IV. Remedying the Tension between the DFWA & the Veterans' Act: A Solution for the President & the Contractor

There are two potential solutions to rectify the tension between the DFWA and the Veterans’ Act that allow federal contractors to employ veteran medical marijuana users while still maintaining a compliant drug-free workplace. First, the President could issue an Executive Order to order a change to the FAR clause implementing the DFWA to federal contractors to ensure drug testing policies are only utilized for safety sensitive positions. Second, federal contractors could establish a reasonable accommodation framework under a drug testing scheme that allows medical marijuana users to maintain their employment on a case-by-case basis when the employee at issue is in a non- safety sensitive position.

A. Presidential Executive Order Requiring Change to the FAR

Though contractors justify the need for drug testing to ensure workplace safety, there are several positions that do not affect the individual’s safety or the public’s safety if the duty is performed by a potentially impaired employee. Examples of these positions include administrative work, janitorial work, and data entry. Given the wide variety of positions contractors offer that do not carry workplace safety concerns, the President could issue an Executive Order directing a change to the FAR to forbid the use of zero-tolerance drug testing policies for employees in non-safety sensitive positions. Specifically, this change would require adding definitions of a “safety sensitive position,” and “zero-tolerance drug testing policy” to the statute, as well as two additional clauses that limit a contractor’s ability to utilize drug testing policies exclusively to safety-sensitive positions. The changes ordered by the President would stress that the Nation’s concern is the educational and rehabilitative aspects of the statute, not the penalization of employees for at-home drug use.

The “Definitions” section of FAR 52.223-6(a) must be amended to include the following definitions:

Safety Sensitive Position means any position where an individual’s safety as well as the public’s safety could be affected if an employee performs the job while impaired by drugs — including positions within the aviation, commercial motor carriers, maritime, pipeline, and transit fields. A position outside of the aforementioned fields may be deemed to be safety-sensitive by a contractor if an employee could directly affect the safety of himself or the public by performing said duties while impaired by illegal substances.

Zero-Tolerance Drug Testing Policy
means an employment policy in which an applicant or current employee is automatically disqualified or terminated from employment if the individual fails a drug test screening for any illegal drug, including medical marijuana.

Furthermore, the clause relating to the certification requirements under the DFWA, FAR 52.223-6(b)(7), must be amended to state the following:

(7) Make a good faith effort to maintain a drug-free workplace through implementation of subparagraphs (b)(1) through (b)(6) of this clause;

(i) the Contractor may not impose a zero-tolerance drug testing policy on employees within non-safety sensitive positions to certify compliance with (b)(1) through (b)(6) of this clause, except;

(ii) zero-tolerance drug testing schemes may be utilized for employees in safety sensitive positions, as defined in Section A of this clause to ensure the safety of an individual and the public.

This proposed change to the FAR would ensure the DFWA is enforced in a manner consistent with the statute’s intended educational and rehabilitative purposes. Congress enacted the DFWA for the purpose of educating and rehabilitating drug users in the workplace. Committee reports specifically noted that it is not an employer’s job to take on the role of law enforcement by imposing drug testing requirements, but rather an employer should take steps to educate the workforce regarding the dangers of drug use in the workplace. In the medical marijuana context, employers utilizing a zero-tolerance drug testing policy are acting contrary to congressional intent by penalizing employees for at-home drug use. Removing the drug-testing requirements allow contractors to focus on educating employees on the effects of being impaired in the workplace.

Limiting zero-tolerance drug testing policies to employees in safety- sensitive positions addresses the safety concerns of contractors regarding intoxication in the workplace. Non-safety sensitive positions do not carry the same safety concerns as positions that could affect the individual employee or public’s safety. Imposing a zero-tolerance drug testing policy on employees in non-safety sensitive positions is unnecessary as the practice does not further the statute’s goal of improving workplace safety. The proposed change adequately meets the safety concerns by allowing employers to continue drug testing employees in safety-sensitive positions, as those positions carry safety risks that can adversely affect the individual employee and the general public.

The removal of zero-tolerance drug testing policies for non-safety sensitive positions allows contractors to meet their requirements under the Veterans’ Act by employing veteran medical marijuana users without fear of consequences under the DFWA. The generally applicable imposition of these policies to all employees of a contractor prevents the employment of veteran medical marijuana users, as these veterans are unable to pass a drug screening. However, these obstacles to employment would be overcome if these strict drug-testing policies were removed. The removal of these drug testing policies would allow veteran medical marijuana users to obtain non-safety sensitive positions, promoting the affirmative action employment requirements under the Veterans’ Act. Additionally, as drug-testing is not required under the DFWA, the removal of these requirements still allows contractors to certify compliance with the statute, so long as they have made a good faith effort to maintain a drug-free workplace. A prohibition on drug use on the physical worksite would satisfy this requirement. Therefore, under the proposed change, a federal agency cannot penalize contractors who hire veterans who use medical marijuana at home and work in non-safety sensitive positions.

B. Reasonable Accommodation Framework

Individual contractors need not wait for an Executive Order. They could remedy the tension between the DFWA and the Veterans’ Act that is created by the implementation of zero-tolerance drug testing policies by adopting a reasonable accommodation framework for veterans who use medical marijuana. This framework would allow contractors to keep existing zero-tolerance drug testing policies in place by establishing a case-by-case analysis on how to handle veterans who use medical marijuana that will inevitably test positive for drug use.

When an employee tests positive for marijuana under a contractor’s zero-tolerance drug testing regime, the contractor must first determine whether the duties the employee performs are within the U.S. Department of Transportation’s regulations requiring mandatory drug and alcohol testing under the Omnibus Transportation Employee Testing Act of 1991. These positions by definition have the potential to adversely affect the individual and the public’s safety if performed while under the influence of drugs. As there is an existing federal regulation mandating drug and alcohol testing within these fields, a contractor would not be able to legally accommodate medical marijuana using veterans within these positions.

Under this proposed framework, an employee who is not in a position falling under the umbrella of the Department of Transportation-Omnibus regulations is eligible for an accommodation to a failed drug test unless the contractor establishes that the medical marijuana user is a direct threat to the health and safety of others. Instead of imposing adverse employment actions triggered by testing positive for marijuana under a zero-tolerance drug testing regime, an employer could forgive employment-related consequences on a case-by-case basis so long as the employee can provide sufficient proof the substance was legally obtained under the relevant medical marijuana state statute.

However, if an employee performing in his or her duties is deemed to be a direct threat to the health and safety of others where the risk of harm is significant, they would not be eligible for this accommodation. To determine if an employee is a direct threat to exempt them from accommodation, a contractor must make an individualized assessment as to the employee’s present ability to safely perform the essential duties of their position. A contractor must consider the following four factors: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. In weighing these factors in determining whether a medical marijuana using employee is a direct threat, contractors should use objective evidence regarding the dangers imposed by medical marijuana users to justify the ultimate accommodation decision.

To effectuate the purpose of this accommodation framework, a contractor may only make the determination that an employee is a direct threat if the risk associated with allowing the employee to perform the functions of his or her job is significant. A slight or speculative risk would not adequately effectuate the purpose for this accommodation framework, which is to promote the employment of veterans who use medical marijuana and raise minimal safety concerns in the workplace. However, if the individual is deemed to pose a significant risk of harm, it is necessary to protect the public’s safety and proceed with the appropriate penalty under the contractor’s zero-tolerance drug testing policy.

As well as addressing any safety concerns an impaired employee might pose, a reasonable accommodation framework would also not violate the DFWA as contractors are only required to certify in good faith that their workplace is drug free. A reasonable accommodation framework would allow veteran employees who test positive for marijuana to continue employment without threatening the contractor’s compliance with the DFWA because it is possible for a contractor to certify in good faith that their workplace is drug free based on a policy that prohibits all illegal substances to be used on the physical worksite.

In addition to meeting the affirmative action requirements under the Veterans’ Act, a reasonable accommodation standard would better effectuate the educational and rehabilitative intent of the DFWA. The DFWA was not enacted to penalize the drug use of federal employees, but rather to address the problem of drug abuse in the workplace by educating and rehabilitating employees. The legislative history and statutory language both support this intent. The majority of the statute stresses the importance of an ongoing drug-free awareness program in the workplace that informs employees of the dangers of drug abuse in the workplace and any available drug counseling, rebilitation, and employee assistance programs. The implementation of a reasonable accommodation framework on a case-by-case basis when an employee violates the contractor’s zero-tolerance drug testing policy turns an employer’s focus towards educating and rehabilitating users, rather than penalization.

V. Conclusion

In the context of veteran medical marijuana users, the implementation of zero-tolerance drug testing policies to certify compliance with the DFWA inhibits a contractor’s ability to meet the affirmative action requirements under the Veterans’ Act. These policies unnecessarily create this tension between the two statutes, as the DFWA does not require drug testing, nor does drug testing actually effectuate the goal of a safer workplace. The President and individual contractors both have the ability to remedy this tension and promote the employment of veterans in government contracting. The Executive Order solution most likely effectuates the congressional intent of the DFWA but requires an administration to deem this matter pressing and take action. The proposed reasonable accommodation framework allows contractors to individually rectify this tension without fear of ramification under the DFWA. Regardless of which solution is ultimately adopted, the Nation’s long history of supporting veteran employment efforts emphasizes the need to rectify this tension and prevent exclusion of veteran medical marijuana users from the government contracting workforce.

APPENDIX A: Medical Marijuana State Legislation

APPENDIX B: Accomodation Obligations Under State Medical Marijuana Laws

APPENDIX C: A Contractor's Reasonable Accommodation Flow Chart