- Research suggests that rescheduling marijuana to Schedule III under the Controlled Substances Act could reduce reliance on federal illegality in state court decisions but would not automatically legalize recreational use or eliminate workplace testing requirements.
- Evidence leans toward continued federal testing under 49 C.F.R. Part 40 for safety-sensitive roles, with potential regulatory updates needed to maintain marijuana prohibitions.
- In states with medical marijuana laws, rescheduling may enable federal prescriptions, strengthening ADA protections for prescribed THC, though employers can restrict use in safety-sensitive positions if it poses a direct threat.
- It seems likely that focusing on real-time impairment observations by trained supervisors will become more critical than THC metabolite tests, which do not indicate current impairment.
The potential rescheduling of marijuana from Schedule I to Schedule III acknowledges its medical utility while maintaining controls, potentially easing tensions between federal and state laws without fully resolving workplace testing conflicts.
Federal Testing Continuity Federal programs like those under 49 C.F.R. Part 40 will likely continue requiring marijuana testing until regulations are amended, emphasizing safety in transportation sectors.
State Protections Expansion States with off-duty conduct laws may see bolstered employee safeguards, particularly for medical use, as federal illegality arguments weaken.
ADA and Accommodations Prescribed THC could qualify for reasonable accommodations under the ADA unless it creates a direct safety threat, shifting focus to individualized assessments.
Impairment Detection Shift Emphasis on supervisor observations over metabolite tests aligns with evolving best practices, addressing THC's long detection windows.
Introduction
The potential rescheduling of marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA), as directed by Executive Order on Increasing Medical Marijuana and Cannabidiol Research (Dec. 18, 2025), represents a pivotal shift in federal drug policy. This change, if finalized, would recognize marijuana's accepted medical uses and lower abuse potential while maintaining federal controls on unauthorized activities. 21 U.S.C. § 812(b)(3) (defining Schedule III criteria). Currently listed in Schedule I, marijuana is deemed to have no accepted medical use and high abuse potential. 21 U.S.C. § 812(c)(Schedule I)(c)(10), (17). Rescheduling would align federal policy more closely with state frameworks, where 40 states permit medical marijuana, but introduces complexities for workplace testing, particularly under federal regulations like 49 C.F.R. Part 40 and state off-duty conduct protections.
This article examines the implications for federal and state workplace testing, drawing on primary statutes, regulations, and court decisions. It addresses the persistence of federal prohibitions, state anti-discrimination laws, Americans with Disabilities Act (ADA) obligations, shifts in impairment detection methods, and the role of detection windows in off-duty conduct regulations. While rescheduling promises greater research and access, it does not equate to legalization and may prompt litigation over employer policies. As of December 22, 2025, the rescheduling process remains ongoing, with no final rule issued by the DEA.
Federal Framework: The Controlled Substances Act and Rescheduling Process
The CSA establishes five schedules based on abuse potential, medical use, and dependence risk. 21 U.S.C. § 812(a). Schedule I includes substances like marijuana with no accepted medical use. 21 U.S.C. § 812(b)(1). Schedule III covers those with accepted medical use and moderate dependence potential. 21 U.S.C. § 812(b)(3). Rescheduling requires administrative proceedings under 21 U.S.C. § 811, involving Health and Human Services (HHS) review and Drug Enforcement Administration (DEA) rulemaking.
The Executive Order directs expeditious completion of the process initiated in May 2024 by the United States Department of Justice. Post-rescheduling, marijuana could be prescribed federally, but recreational use remains prohibited. This shift does not alter the Drug-Free Workplace Act, which mandates federal contractors to maintain drug-free policies without requiring testing. 41 U.S.C. § 8102(a). Federal courts have held it does not preempt state laws. See Noffsinger v. SSC Niantic Operating Co., 273 F. Supp. 3d 326, 334–35 (D. Conn. 2017).
Federal Workplace Testing Under 49 C.F.R. Part 40
The Department of Transportation (DOT) mandates testing for safety-sensitive employees in transportation sectors. 49 C.F.R. § 40.85 (requiring tests for marijuana metabolites). Current cutoffs under HHS guidelines: 50 ng/mL initial screen and 15 ng/mL confirmatory for delta-9-tetrahydrocannabinol-9-carboxylic acid (THCA) in urine. 88 Fed. Reg. 70,814, 70,824 (Oct. 12, 2023) (Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Urine). Medical Review Officers (MROs) cannot verify negatives for state-authorized medical marijuana due to Schedule I status. 49 C.F.R. § 40.151(e).
Rescheduling to Schedule III may create a gap, as Part 40 targets Schedules I and II. 49 C.F.R. § 40.82. DOT could amend regulations to list marijuana explicitly or prohibit impairing substances. Until finalized, testing continues per DOT guidance.
State Laws Protecting Off-Duty Conduct and Medical Marijuana
Many states prohibit discrimination for lawful off-duty activities, extending to medical marijuana where legalized. The following summarizes key statutes in states with explicit protections, including dates and exceptions.
- Arizona: Under Ariz. Rev. Stat. § 36-2813 (enacted 2010), prohibits discrimination in hiring, termination, or conditions based on cardholder status or positive test unless impaired at work; exceptions for federal benefit loss or on-premises use/impairment.
- California: Under Cal. Gov't Code § 12954 (via AB 2188, enacted 2022, effective 2024), unlawful to discriminate based on off-duty cannabis use or non-psychoactive metabolite tests; exceptions for on-job possession/impairment, federal requirements, or building trades.
- Colorado: Under Colo. Rev. Stat. § 24-34-402.5 (enacted 1990, amended 2007), discriminatory to terminate for off-duty lawful activities; exceptions for bona fide occupational requirements or conflicts of interest.
- Connecticut: Under Conn. Gen. Stat. § 21a-408p (enacted 2012, amended 2021), no discrimination in employment based on qualifying patient/caregiver status; exceptions for federal funding or on-job impairment/use.
- Illinois: Under 410 Ill. Comp. Stat. 130/40 (enacted 2013, amended 2019), no refusal to hire/penalize solely for registered status; exceptions for federal benefit loss or on-premises impairment.
- Nevada: Under Nev. Rev. Stat. § 678C.850 (enacted 2019), prohibits adverse action for medical use unless safety-sensitive or federal conflict; exceptions for on-job use or impairment.
- New Jersey: Under N.J. Stat. Ann. § 24:6I-52 (enacted 2019, amended 2021), unlawful to take adverse action based on registered status; exceptions for federal law or safety hazards.
- New York: Under N.Y. Lab. Law § 201-d (enacted 1983, amended 2021), prohibits discrimination for off-duty legal cannabis use; exceptions for material conflicts, federal mandates, or impairment.
- Washington: Under Wash. Rev. Code § 49.44.240 (via SB 5123, enacted 2023, effective 2024), prohibits pre-employment screening for non-psychoactive cannabis metabolites; exceptions for safety-sensitive positions or federal contractors.
These laws often require reasonable accommodations for medical users unless undue hardship results. Rescheduling could bolster claims by validating medical use federally. Additional states prohibit metabolite-based testing for off-duty use, recognizing that such tests do not indicate current impairment.
ADA Considerations for Prescribed Marijuana
The ADA prohibits discrimination against qualified individuals with disabilities. 42 U.S.C. § 12112(a). Qualified individuals exclude current illegal drug users. 42 U.S.C. § 12114(a). Post-rescheduling, prescribed THC may not qualify as "illegal," akin to Schedule III opioids. Employers must accommodate unless it poses a direct threat. 42 U.S.C. § 12112(b)(5)(A). In safety-sensitive positions, prohibitions are permissible if evidence shows unmitigable risks. 42 U.S.C. § 12114(c)(2)–(4).
For non-DOT employers, individualized assessments are required; blanket bans may violate ADA if no direct threat exists.
State Court Decisions Relying on Federal Illegality and Potential Shifts
Historically, courts upheld terminations citing federal illegality. In Coats v. Dish Network, LLC, 350 P.3d 849, 852 (Colo. 2015), the Colorado Supreme Court held medical marijuana use was not "lawful" under state off-duty statute due to CSA violation. Similarly, Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 203 (Cal. 2008), affirmed no accommodation required under FEHA. Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, 230 P.3d 518, 529 (Or. 2010), found state medical marijuana law preempted for employment.
Recent decisions favor employees. Noffsinger v. SSC Niantic Operating Co., 273 F. Supp. 3d 326, 334 (D. Conn. 2017), ruled federal law does not preempt state protections. In Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 465 (2017), the Massachusetts Supreme Judicial Court noted that a positive THC test does not necessarily prove on-duty impairment or use, requiring employers to consider accommodations for off-duty medical marijuana. Rescheduling may weaken federal illegality arguments, especially for medical use, though recreational remains controlled.
Impairment Detection: Observations vs. THC Testing
THC tests detect metabolites without proving impairment. 49 C.F.R. § 40.151(f) (no negative for hemp/non-prescription). States like California prohibit metabolite-based actions. Cal. Gov't Code § 12954(a)(2). Prioritizing supervisor observations of speech, behavior, odor, and appearance aligns with ADA and reduces liability. Conn. Gen. Stat. § 21a-408p(b)(3) (discipline for impairment allowed).
Impact on Impairment Detection Methods and Off-Duty Conduct Regulations
Rescheduling is likely to accelerate a shift in emphasis from metabolite-based testing to supervisor training programs for real-time impairment detection, as traditional tests fail to distinguish between off-duty use and on-duty impairment. This transition addresses the long detection windows for THC metabolites, which can persist in urine for 3 days in occasional users to over 30 days in chronic users, Scott E. Hadland & Sharon Levy, Objective Testing – Urine and Other Drug Tests, 25 Child & Adolescent Psychiatric Clinics N. Am. 549, 552 (2016), in blood for 1-7 days, Armand Casolin, Comparison of Urine and Oral Fluid for Workplace Drug Testing, 40 J. Analytical Toxicology 479, 480 (2016), in saliva for 1-3 days, Kate Dolan et al., An Overview of the Use of Urine, Hair, Sweat and Saliva to Detect Drug Use, 23 Drug & Alcohol Rev. 213, 214 (2004), and in hair for up to 90 days, Hadland & Levy, supra, at 552. Such windows render metabolite tests unreliable for assessing current impairment, leading states to regulate their use in off-duty conduct contexts.
Federal regulations already mandate supervisor training for reasonable suspicion testing. Under 49 C.F.R. § 382.603, employers must provide at least 60 minutes of training on alcohol misuse and 60 minutes on controlled substances use, covering physical, behavioral, speech, and performance indicators. Post-rescheduling, this behavior-focused approach may expand to non-DOT employers, with states like New Jersey requiring physical evaluations for impairment rather than relying on tests. N.J. Stat. Ann. § 24:6I-52(a)(2) (prohibiting adverse actions based solely on positive cannabis test).
Detection windows exacerbate conflicts with off-duty conduct laws, as positive results may reflect legal off-duty use weeks prior. Courts have increasingly scrutinized this, as in Wild v. Carriage Funeral Holdings, Inc., 258 N.J. 152, 167 (2022), where the New Jersey Supreme Court allowed discrimination claims for off-duty medical marijuana, emphasizing that tests do not prove impairment. Similarly, in Paine v. Jefferson Nat'l Life Ins. Co., No. 21-20169, 2022 WL 16951477, at *4 (5th Cir. Nov. 15, 2022), the court noted long detection periods undermine zero-tolerance policies under state protections.
States prohibiting metabolite-based testing include California (Cal. Gov't Code § 12954), Washington (Wash. Rev. Code § 49.44.240), and New York (N.Y. Lab. Law § 201-d(4-a)), which limit pre-employment screening to psychoactive metabolites and require evidence of on-job impairment. This shift promotes training programs, such as those outlined in National Safety Council guidelines, to focus on observable signs rather than historical use. Legal implications include reduced discrimination claims and enhanced workplace safety through proactive impairment management, though employers in safety-sensitive roles retain discretion to enforce stricter protocols.
Implications for Designated Employer Representatives and Drug & Alcohol Program Managers
DERs and program managers oversee compliance with DOT regulations and manage testing programs. Post-rescheduling, they must continue enforcing existing marijuana testing and zero-tolerance policies unless DOT issues formal changes. Potential loss of testing authority under HHS guidelines (limited to Schedules I and II) requires preparation for regulatory clarifications. DERs should send employee memos affirming no immediate policy changes, reaffirm supervisor training on reasonable suspicion, audit drug policies for federal preemption and defined safety-sensitive roles, monitor agency notices from DOT, DEA, HHS, and DOJ, and prepare 30-day update plans. In non-DOT contexts, prepare for increased ADA accommodation requests for medical marijuana and evaluate Non-DOT company policies to avoid conflict with ADA.
Implications for Collection Sites
Collection sites handle sample gathering under 49 C.F.R. Part 40 and state law. Current testing panels remain unchanged, but rescheduling could affect authority to test for Schedule III marijuana without carve-outs. Collection sites must confirm with TPAs and MROs that tests include marijuana and continue processing under existing protocols, notifying employers of any authority changes. Anticipate potential impacts on DOT-regulated programs if regulations are revised.
Implications for Third Party Administrators
TPAs manage testing for employers. Their authority to relay marijuana results may be impacted post-rescheduling without carve-outs. TPAs should provide written confirmation to employers of continued processing, notify of changes, and guide clients through DOT and HHS updates. Stay informed on federal-state interactions influencing testing protocols.
Implications for Supervisors
Supervisors observe and report impairment. Reasonable suspicion protocols remain unchanged; they must document observations as marijuana use stays prohibited in safety-sensitive roles. Reaffirm training under federal regulations (i.e. 49 C.F.R. § 382.603 for FMCSA covered employees) and prepare for employee confusion or disputes over the executive order. In broader contexts, be aware of possible ADA requests for marijuana accommodations.
Implications for Employees
Employees face continued prohibitions on marijuana in safety-sensitive positions, with positive tests leading to consequences under DOT rules; state-legal use offers no federal protection yet. Post-rescheduling, medical use may open ADA accommodation avenues, depending on state laws. Receive communications clarifying no changes and comply with testing; unionized workers may see bargaining for permissive use.
Conclusion
Rescheduling bridges federal-state divides but sustains controls, urging stakeholders to update policies with emphasis on training and impairment over testing. States may expand protections, and courts could favor employees. Emphasis on real-time assessments promotes safety and mitigates liability.
