4/27/26 Effect of Marijuana Rescheduling on Drug Testing and Use Policies
April 27, 2026
On April 23, 2026, the U.S. Department of Justice (DOJ) and Drug Enforcement Administration (DEA) issued an order immediately placing Food and Drug Administration (FDA)-approved products containing marijuana and marijuana products regulated by a state medical marijuana license in Schedule III.
An expedited hearing on a potentially broader scope of this rescheduling is set to begin on June 29, 2026.
Here is what this change means for employers:
What is a “Schedule”?
Implemented by the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, drug scheduling is a system used by the DEA and the FDA for regulating drug manufacturing, distribution, and use.
Controlled substances recognized by the law are categorized from Schedule I to Schedule V. Schedule I represents the extreme end of the spectrum and includes drugs such as heroin which have a high abuse potential and no accepted medical use. At the opposite end of the spectrum are Schedule V drugs, such as cough preparations with less than 200 mgs of codeine, which have low abuse potential and are accepted in medical use.
The scheduling system is used to determine the legal penalties associated with use of a particular drug. The rescheduling of marijuana will likely increase scientific study, but will also create new legal complexities for employers, specifically surrounding drug use and testing policies and the possible use of marijuana as a reasonable accommodation for certain medical conditions.
What Does “Rescheduling” Mean?
It is important to understand that rescheduling of marijuana does not mean that the drug can be obtained over the counter or used without medical authorization. Subject to the parameters stated in Thursday’s order, marijuana remains a controlled substance subject to prosecution for unlawful use or possession under federal law.
Impact on Employment Policies
Even though marijuana use has been allowed as regulated under Oregon and Washington law for some time, it has remained illegal under federal law and many employers cite federal illegality as a reason for outright banning of the drug through their substance abuse policies. Federal illegality has also meant that employers have generally not had to consider medical marijuana as a potential accommodation under state and federal disability laws. Rescheduling may change these practices.
While we await further guidance on this new order, employers should update their substance abuse policies if those policies currently refer to marijuana as an “illegal drug,” language that is common for many employers. They may want to state instead that marijuana use will continue to be a violation of any current employer policies, unless such use is in full compliance with state and federal rules and requirements.
We will continue to provide updates on the effect of these changes on employment policies as additional information becomes available.
For questions regarding drug policies, please contact Andrew Schpak at 503-276-2156 or aschpak@barran.com, Paula Barran at pbarran@barran.com or 503-276-2127, or Lex Shvartsmann at 503-276-2111 or lshvartsmann@barran.com.