PSH-21-0095 - In the Matter of Personnel Security Hearing

On October 29, 2021, an Administrative Judge determined that the Individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed by a Department of Energy (DOE) contractor in a position that requires him to hold a DOE security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual. Under Guideline F, the LSO alleged that: (1) the Individual was chosen for a random drug screen on October 24, 2019, which was positive for the marijuana metabolite above the allowable limit; (2) the Individual attributed his positive drug test to the use of use cannabidiol (CBD) oil products, which he began taking in mid- 2018 to treat his chronic pain; (3) the Individual participated in a "Workplace Substance Abuse Program" on June 6, 2019, and reviewed and signed a document acknowledging his completion of the training; (4) the Individual admitted "that he did not see or read the all- employee communication sent on September 16, 2019, indicating that CBD oils could result in a positive drug test; (5) the responses provided in the January 21, 2020, LOI indicated that the Individual had used CBD oil for over two years prior to testing positive, but that the Individual had passed two previous drug tests while taking CBD oil.

The Individual presented his own testimony as well as that of two other witnesses. Based on the testimony and the exhibits entered into the record, the Administrative Judge concluded that the evidence strongly suggested that the Individual tests positive for the marijuana metabolite because of consuming CBD oil to treat his chronic pain. The Administrative Judge determined that the Individual mitigated the stated Guideline H concerns pursuant to ¶ 26(a)-( b). After testing positive for the marijuana metabolite, the Individual was subject to random drug testing over the span of approximately one year, and all results were negative. He successfully cooperated with his employer's Employee Assistance Program and underwent a medical evaluation, resulting in a recommendation to return the Individual to work. After testing positive in 2019, the Individual ceased the use of CBD oil, and discarded the remaining product, endeavored to mitigate his chronic pain by other means, and stated his intention to never use CBD products again.

This case was distinguished from the case PSH-20-0020 in that although the Individual in PSH 20 0020 provided notice to his chain of command and security personnel before he commenced his use of CBD products, the Individual in this case began using CBD oil prior to his employment with the contractor and prior to receiving his clearance.

Accordingly, the Administrative Judge concluded that the Individual had mitigated all security concerns stated in the Notification Letter. The Administrative Judge therefore concluded that the Individual's access authorization should be restored. (PSH-21-0095).