Weeding Out: Trouble for Federal Government Contractors
Federal government contractors and subcontractors may not find it easy to roll with state legislation permitting medicinal and/or recreational marijuana use. In fact, attempting to comply with state law may come with high stakes for such employers. Here are a few tips federal government contractors and subcontractors should keep in mind:
Confirm status as a federal government contractor or subcontractor
Similar to a false positive on a drug test, there is the potential for “false” or erroneous classification as a federal government contractor or subcontractor. This determination may be impacted by various criteria, including different contractual thresholds, and subcontracting relationships.
Before grappling with the complexities of reconciling state marijuana legislation with federal laws and regulations, it is crucial for employers to verify their status as federal government contractors or subcontractors as not every relationship with the federal government results in a federal government contractor or subcontractor classification. This entails a thorough review of contractual agreements, engagement with relevant government agencies where necessary, and consultation with legal counsel.
Recognize and mitigate conflicts between federal, state and local laws
Marijuana remains a Schedule I controlled dangerous substance under federal law and is therefore illegal. This is true despite numerous states passing marijuana legislation permitting the recreational and/or medicinal use of marijuana. Yet federal government contractors and subcontractors are still subject to strict regulations and requirements imposed by the federal government, including drug-free workplace polices and compliance with the Drug-Free Workplace Act, among others. These strict federal regulations and laws may conflict with local and state laws on marijuana use. Such conflicts may create uncertainty for federal contractors and subcontractors who must comply with federal regulations while operating in states with differing marijuana laws.
For example, anti-discrimination laws that protect an employee’s off-duty marijuana use have been enacted in several states, including California, Montana, New Jersey, Nevada, Washington, and Louisiana. The scope of protection varies by state. While some states have included special exemptions for federal contractors and subcontractors in these anti-discrimination laws, such exemptions are not universal. As such, federal contractors and subcontractors may feel a tug-of-war between state and federal marijuana laws.
Federal contractors and subcontractors should work with legal counsel to determine how to address these challenges and mitigate any risks.
Understand the risks of permitting marijuana use
Federal contractors and subcontractors must also consider their contractual obligations and potential risks associated with permitting marijuana use. Failure to comply with federal regulations or maintain a drug-free workplace could result in contract suspension or termination, debarment as a federal contractor, loss of future contracting opportunities, or legal liabilities. As such, federal contractors and subcontractors must carefully review their contracts and ensure that their drug testing and discipline policies align with requirements therein.
Bottom line
The complex legal landscape surrounding marijuana is certainly felt by federal contractors and subcontractors. Until conflicts between federal, state, and local laws are resolved, federal contractors and subcontractors should remain informed and ready to seek legal aid in navigating the complexities of implementing drug policies at work.
