By Current Consulting Group Staff
In 2024, the United States took major steps toward changing how cannabis is classified under federal law. On May 21, 2024, the Department of Justice (DOJ) published a Notice of Proposed Rulemaking(NPRM)aimingto move marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA). Schedule I substances are those considered to have a high potential for abuse, no accepted medical use, and a lack of safety even under medical supervision. Moving to Schedule III would signal that marijuana has a currently accepted medical use, a lower potential for abuse than substances in Schedules I or II, and moderate or low physical dependence risk.
What’s in the NPRM Now
The Notice of Proposed Rull Making (NPRM) (Docket No. DEA-1362) lays out how the change would work in practice. If finalized, marijuana would still be subject to many controls applicable to Schedule III substances, along with existing marijuana-specific requirements and possibly additional measures to comply with international treaty obligations.
The NPRM process included public comment periods, requests for hearings, and a formal evaluation by the Department of Health and Human Services (HHS), which in August 2023 recommended rescheduling marijuana to Schedule III.
What If Trump Reschedules Marijuana? Is That Legal?
Donald Trump has expressed interest in rescheduling marijuana to Schedule III in 2025, particularly given the momentum from the DOJ/HHS work already underway. Under U.S. law, rescheduling must follow certain steps under the CSA: scientific and medical evaluation (via HHS), a recommendation, then a formal rulemaking process by the DEA, including public input. That means even if a President supports rescheduling, he cannot lawfully bypass the legal and regulatory requirements. Courts have repeatedly held that the DEA must evaluate the eight statutory factors, consider medical use, and follow rulemaking procedures. So yes, rescheduling is legal, but it must move through this prescribed process—and right now, that process is in a holding pattern, awaiting a hearing that was postponed due to a pending appeal. Because of these requirements, a President cannot unilaterally change marijuana’s schedule without completing the full rulemaking process.
What Could These Changes Mean for the Workplace?
If marijuana is rescheduled from Schedule I to Schedule III, it would remain a controlled substance under the CSA, just in a lower schedule. While this would not legalize marijuana, it could still create meaningful changes in how employers approach workplace drug testing.
These changes would primarily affect how testing programs are structured, justified, and enforced. Employers may need to pay particular attention to the following areas:
- Testing for marijuana under federal programs would be in jeopardy
Rescheduling could change drug testing requirements for employers regulated by the U.S. Department of Transportation (DOT), unless rescheduling includes what is known as a “safety carveout.” A safety carveout would make it possible for HHS certified laboratories to continue to test for marijuana under the regulations and for DOT to continue requiring testing for marijuana by covered employers. Without a safety carveout, DOT-required testing for marijuana would likely be prohibited.
- Testing programs may need updates toremain defensible
To remain legally defensible, employers should re-evaluate which testing reasons are necessary (pre-employment, random, postaccident, reasonable suspicion), update policies to reflect how marijuana positives are addressed, and document the safety-sensitive justification for testing, which will become more critical if marijuana is no longer classified as Schedule I.
- State law conflicts could become more complex
Many states already limit how or when employers can test for marijuana or discipline workers for off-duty use. Rescheduling may encourage more states to adopt employee protections—like those already in place in California (AB 2188) and Washington (SB 5123).
Relatively new laws in these two states limit employment actions (pre- and post-hire testing in
California and pre-employment only in
Washington) based solely on positive THC tests from testing methods, such as urine and hair testing, that only reveal the presence of the nonpsychoactive metabolite of cannabis. Testing methods that reveal the parent drug or the drug itself such as oral fluid testing are not subject to such restrictions in these states. Employers operating across states will need to ensure their policies are consistent with differing state laws to stay compliant.
How is Workplace Screening Intelligence getting involved in the legislative process?
Workplace Screening Intelligence joined the
National Drug and Alcohol Screening Association (NDASA) in Washington D.C. to advocate for Employers to keep the right to have safe and drug free workplaces as well as citizens to have safe and drug free communities with a safe and drug free transportation sector.
Phil Dubois, CEO of Workplace Screening Intelligence, reported, “We personally met with Senator Mike Rounds, Senator Lisa Murkowski and another 25 Congressional officers. We spoke about how important Rescheduling Marijuana from Schedule I to Schedule III is to workplace safety. Knowing that Rescheduling to Schedule III will likely stop all Marijuana testing in DOT Panels, we advocated for a Safety Carve Out.
A safety carve out would allow for DOT to continue testing for Marijuana if it was legalized or Rescheduled to Schedule III or higher.
How does Rescheduling affect me personally? If Rescheduled to III, that means every truck driver, school bus driver, pilot, and other DOT safety sensitive positions would be allowed to smoke marijuana without having to worry about being tested. This would infringe on the right of U.S. citizens having safe and drug free transportation sector and further worry about who is transporting our kids on school buses.
Workplace Screening Intelligence is a proud member of NDASA. Our CEO, Phil Dubois, is a Board Member of NDASA and is Chairman of the Government Affairs Committee. For more information on NDASA, visit www.ndasa.com
Conclusion
Rescheduling marijuana will not end workplace drug testing, but it will increase the pressure on employers to modernize their policies, documentation, and justifications.
Employers should review their testing programs at least annually to ensure they remain legally defensible and consistent with federal regulations and state laws.
Confused about marijuana laws in your state? Want to update your policy to reflect newly passed or updated marijuana laws?
Reach out to Workplace Screening Intelligence at
info@workplacescreening.com, www.workplacescreening.com or call us at 844-573-8378 for answers to your questions and to ensure your practices align with federal and state regulations.
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