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Federal Agencies Can Fire Employees for Accidentally Using Marijuana, Federal Court Rules

Court sets new precedent in saying employee was rightfully fired, even if he didn't realize he was eating a pot brownie.

Federal agencies can fire employees for failing a drug test, a federal court said in a recent precedent-setting ruling, even if the employees ingested the illicit drug by accident.

Jeffrey Hansen was a information technology specialist at Customs and Border Protection who was removed from his job after testing positive for marijuana. Hansen argued the result was a shock, as he never knowingly consumed any drug. He did not contest the result of the drug test, however, and a panel of federal judges ruled that “intent is not an element of the charged conduct” so Hansen’s argument had no bearing on the legitimacy of his firing.

Hansen posited that he only consumed the marijuana because it was baked into a brownie a friend-of-a-friend’s neighbor gave him at a barbecue. He said in a letter to his agency that an unknown person at the barbecue “thought it would be funny” to bring the pot brownie. The deciding official at CBP followed through on the removal after determining that Hansen provided no evidence to support his claim that the marijuana consumption was inadvertent.

Hansen then appealed the decision to the Merit Systems Protection Board, which ruled in the agency’s favor. Hansen failed to provide “sufficient proof of inadvertent ingestion to warrant interfering,” the board’s judge said. Hansen told the board he suffered from an upset stomach and fatigue after he returned home from the barbecue—which Hansen initially thought was attributable to a sausage he had eaten—but the board heard “expert testimony” that said those symptoms “might occur for many other reasons.”

The panel of federal judges said Hansen’s intentions were irrelevant to the case.

“The government had no need to prove intent to establish that Mr. Hansen committed misconduct warranting removal,” the judges wrote.

After several states and cities around the country legalized recreational marijuana, the Obama administration put out guidance reminding federal employees they were prohibited from possessing marijuana. Any changes in states or localities, “do not alter federal law, existing suitability criteria, or executive branch policies regarding marijuana,” according to the 2015 memorandum. That followed a memo from then-Director of National Intelligence James Clapper reminding agencies that they “continue to be prohibited from granting or renewing a security clearance to an unlawful user of a controlled substance, which includes marijuana.”

The Ronald Reagan-era Executive Order 12564 on the drug-free federal workplace requires federal employees to refrain from the use of illegal drugs, and states that the use of such drugs, “whether on duty or off duty, is contrary to the efficiency of the service.” People “who use illegal drugs are not suitable for federal employment,” the order says. The Obama administration interpreted that EO to apply to both medicinal and recreational use of marijuana. A bipartisan bill introduced in the last Congress would have allowed federal employees to consume marijuana in states where it is legal to do so.

Hansen also argued that while the government had the right to drug test him, it failed to ever tell him he was in a “testing-designated position” and he therefore should not have been subject to random testing. The appeals court declined to rule on that argument, affirming only that Hansen was in a position deemed eligible for testing. The court issued its decision as a precedent-setting ruling, meaning its findings will apply in future appeals.