Medical Pot Use by Veterans Complicates Federal Job Prospects

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By Louis C. LaBrecque

Medical marijuana is legal in 29 states and the District of Columbia, and now a prominent conservative senator has weighed in on the drug’s promise in treating PTSD and other conditions.

Sen. Orrin Hatch (R-Utah) introduced the Marijuana Effective Drug Study Act (S. 1803) Sept. 13 with a bipartisan group of co-sponsors.

“The evidence shows that cannabis possesses medicinal properties that can truly change people’s lives for the better,” Hatch said on the Senate floor.

Hatch’s bill doesn’t address employment, but it could eventually be good news for military veterans who want to work for the federal government.

VA Docs Can’t Talk About or Prescribe Pot

The move comes as the Food and Drug Administration has approved a first-of-its-kind study to test the effectiveness of marijuana for veterans with post-traumatic stress disorder. At present, Department of Veterans Affairs policy prohibits health-care providers from prescribing or even discussing the use of marijuana to treat PTSD.

If the results of the study prompt the VA to change that policy, the government might have to reconsider its rules on hiring people who use medical marijuana.

Another possibility is that the VA could change its medical marijuana policies while the government maintains its employment policies. In that case, federal agencies could be in the awkward position of denying employment to military veterans who are using marijuana prescribed for them by the VA.

This may be the more likely outcome, according to Jeff Neal, senior vice president at management consultant ICF and the former chief human capital officer at the Department of Homeland Security.

Vets Usually Get Preferences on Federal Jobs

“Marijuana is a class one drug,” Neal told Bloomberg BNA in a recent interview, referring to the drug’s status under Schedule I of the Controlled Substances Act. “The Office of Personnel Management can’t just ignore the law,” he said. This is so even though the federal government generally gives priority to military veterans when making hiring decisions.

Schedule I is for drugs that “have no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse,” according to the Justice Department’s website. Other drugs on the list include heroin and LSD.

VA Secretary David Shulkin said in May that there may be some evidence that “this is beginning to be helpful” in response to a reporter’s question about the use of cannabis for medical purposes, including stemming suicides among veterans. The VA is “interested in looking at that” and learning from it, he said.

“I believe that everything that could help veterans should be debated by Congress and by medical experts, and we will implement that law,” Shulkin said during a White House briefing. “But until the time that federal law changes, we are not able to be able to prescribe medical marijuana.”

The VA declined to comment further. Hatch spokesman Matt Whitlock told Bloomberg BNA Sept. 14 that the senator is open to exploring the use of marijuana for veterans with PTSD.

“If research suggests that medical marijuana can be helpful to military veterans, particularly those suffering from Post-Traumatic Stress Disorder, Senator Hatch believes it’s worth exploring,” Whitlock said in an email.

Many Vets With PTSD Already Use the Stuff

Some 725,578 military veterans filed disability compensation claims for PTSD in fiscal year 2016, according to figures from the VA. This makes PTSD the third most prevalent service-connected disability among military veterans, after tinnitus and hearing loss.

And more and more veterans with PTSD are using marijuana, according to a report posted on the VA’s website showing the increased incidence of substance abuse disorder (SUD) among veterans.

“The percentage of Veterans in VA with PTSD and SUD who were diagnosed with cannabis use disorder increased from 13.0% in fiscal year (FY) 2002 to 22.7% in FY 2014,” the report said.

Federal agencies, which employ 2.1 million civilian workers, have a variety of policies on testing for illegal drug use by employees and job applicants. Agencies with law enforcement, national security, or defense missions also generally require existing employees to submit to random drug tests.

This is a big problem for military veterans seeking civilian jobs at the departments of Defense and Homeland Security and the VA itself, attorney Cheri Cannon told Bloomberg BNA Sept. 14.

“You can’t smoke pot and work for the federal government, period,” she said. “It’s a huge topic among vets, because of those using medical marijuana for PTSD.”

Cannon is a managing partner at Tully Rinckey PLLC in Washington who handles federal sector legal matters for the firm.

If the government were to change its employment policies to make them more favorable to military veterans using medical marijuana for PTSD, but not for other job applicants or employees, it could invite legal challenges, Neal, the former DHS chief human capital officer, told Bloomberg BNA.

Federal agencies would be hard-pressed to come up with reasons for treating military veterans differently than other applicants or employees who have medical conditions and prescriptions for marijuana, Neal predicted.

Case Law Is Cloudy

There are a handful of court rulings addressing the interplay between medical marijuana use and protections under federal and state disability laws.

For example, a divided U.S. Court of Appeals for the Ninth Circuit ruled in May 2012 that the Americans with Disabilities Act generally doesn’t provide protection for medical marijuana use, even when authorized by state law and approved by a physician.

However, some state courts have ruled that people with medical marijuana prescriptions who’ve experienced adverse employment actions can pursue disability discrimination claims under state laws.

In one of the most recent rulings, the Massachusetts Supreme Judicial Court ruled July 17 that Cristina Barbuto, who was fired after telling her employer about her legal medical marijuana use to treat Crohn’s disease, raised a plausible disability bias claim under state law. This means that Barbuto can proceed with her claim, not that the issue is settled.

Government HR Guidance Isn’t Hazy

The OPM, which acts as the federal government’s central human resources office, issued guidance to federal agencies on the subject in May 2015.

The use of illegal drugs by federal workers, whether on or off duty, “is contrary to the efficiency of the service” and those “who use illegal drugs are not suitable for Federal employment,” the OPM said in the guidance.

An OPM spokesperson told Bloomberg BNA that nothing has changed since then.

The use or possession of marijuana is prohibited at all VA medical facilities, and clinicians may not prescribe medical marijuana or complete paperwork required for vets to participate in state-approved marijuana programs, the VA says.

Further, veterans who are VA employees are subject to drug testing under the department’s terms of employment.

Professor Running Two Studies

Given the federal government’s stance that marijuana is a dangerous and illegal drug, it’s unclear whether the FDA-approved study will yield the results that supporters—including veterans who are using the drug to manage their conditions despite the VA restrictions—are hoping for.

The study is being conducted by the Multidisciplinary Association for Psychedelic Studies, a nonprofit group based in Santa Cruz, Calif. It will eventually involve 76 military veterans, but as of now 24 vets are participating, Marcel Bonn-Miller, the principal investigator, told Bloomberg BNA. The group began screening study participants in January.

There have been a few small studies of the effectiveness of synthetic cannabinoids in alleviating PTSD symptoms but no studies this large using plant material, said Bonn-Miller, an adjunct professor at the University of Pennsylvania’s Perelman School of Medicine. He noted, however, that the Phoenix VA Medical Center isn’t cooperating with the study, which means vets aren’t being referred to the study by the department.

A separate study of the effectiveness of cannabis in treating PTSD is being conducted in Denver by the University of Pennsylvania. Bonn-Miller is also leading that effort. The Denver VA Medical Center is cooperating with the university on that study, he said. That effort will eventually involve 150 subjects, including 93 subjects who are already enrolled. Unlike the Phoenix study, the Denver study isn’t limited to military veterans, he said.

The VA tracks cannabis use among veterans but only as a disorder, not as a PTSD treatment, Bonn-Miller said.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bna.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com

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