July 30th, 2024 | Heather Horn, VP, Product Fulfillment, Drug & Health Services
What Does Marijuana Rescheduling Mean for Marijuana Testing?

On May 16, 2024, the U.S. Attorney General submitted a notice of proposed rulemaking to the Federal Register, officially notifying the public that it has begun a formal rulemaking process which will potentially reclassify marijuana from a Schedule I drug to a Schedule III drug under the Controlled Substances Act (CSA).
What Does Marijuana Rescheduling Mean?
Marijuana, a derivative of the cannabis plant, is defined as having a high potential for abuse and no accepted medical use under Schedule I. Federal marijuana rescheduling to a Schedule III drug places it into a category of drugs that have a moderate-to-low potential for physical or psychological dependence and certain accepted medicinal applications when accompanied with a prescription1. How does marijuana rescheduling to a Schedule III drug impact its federal regulation2?
- Reclassification, if it occurs, will not legalize marijuana; instead, the drug would still be subject to substantial regulation by the Drug Enforcement Administration (DEA).
- Transferring marijuana to a Schedule III drug will provide federal recognition that cannabis possesses currently accepted medical uses.
Is a Marijuana Rescheduling Date Likely in 2024?
The Notice of Proposed Rulemaking is the first step in a potentially long, complex administrative and political process that is expected to extend beyond 2024. If reclassification does happen, a marijuana rescheduling date is unlikely this year.
Will Federal Marijuana Rescheduling Change Employer Marijuana Test Requirements?
The impact of the possible rule change on marijuana testing is currently unclear. In the weeks since the Notice of Proposed Rulemaking was published, the public has submitted tens of thousands of comments. Some publicly published comments are focused on maintaining the right of the employer to screen for marijuana in safety-sensitive positions. Respondents are demanding exceptions that would permit continued DOT marijuana testing to protect the safety of the US transportation system along with US workplaces, since non-regulated drug-free workplace policies often align with Department of Transportation (DOT) regulated requirements3.
These concerns are based on the recognized potential for employer liability and current testing limitations with regards to marijuana use:
- According to 2024 Federal Motor Carrier Safety Administration Drug and Alcohol Clearinghouse data, over 60% of reported positive DOT drug tests for regulated commercial drivers contain marijuana4.
- There is a demonstrated correlation between marijuana use and workplace accidents. In one recent study5, legalization of recreational marijuana was associated with a 10% increase in workplace injuries among those aged 20 to 34.
- With no onsite option for establishing THC levels in the body and no set standards for the level of THC that constitutes impairment, marijuana testing is currently the only option employers can use to help mitigate potential risk.
As the DEA considers a final rule on marijuana rescheduling, they will review and address public comments and concerns. Until a final rule is published, changes to employer marijuana testing requirements will be unknown.
Increasing Challenges of Marijuana Testing
The current environment of US state employer marijuana test laws is complex and constantly changing, creating compliance challenges for employers hiring across multiple states. While state laws do not supersede federal laws requiring candidates and employees to be tested for controlled substances, the laws applying to non-regulated positions vary significantly among states. As of May 20246:
- Medical use of cannabis is legal in 37 states and the District of Columbia.
- Recreational use is allowed in 24 states and the District of Columbia.
- Starting January 1, 2024, California and Washington enacted laws requiring employers to test for THC, the psychoactive component of marijuana, instead of non-psychoactive metabolites when performing employer drug tests. These laws are designed to protect the rights of employees to legally use marijuana when not on the job.
Keeping Pace with Changing Marijuana Laws
For employers, keeping up-to-date on cannabis laws involves three key actions:
- Stay current with available marijuana testing options. The drug testing industry is responding as quickly as it can with new solutions and new technology. For example:
- Labcorp and Quest are now offering oral fluid collections for lab-based testing that includes THC detection in some California and Washington Patient Service Center (PSC) locations.
- New employer drug tests are under development that will provide more convenient options for identifying the presence of THC.
- Look to your drug and health provider to keep you apprised of important legislation that may impact the compliance of your drug testing policies and procedures. Sterling provides regular compliance updates on topics that may impact your background check program on our Compliance Hub.
- Work with your legal counsel to perform regular, thorough reviews of your employer drug test policies and procedures to keep your organization aligned with new requirements.
A thorough review of your drug testing policy should include:- Assessing your regulatory obligations
- Do you employ federally regulated employees?
- Do you have a federal contract that requires federal testing of employees?
- Reviewing current legal requirements in the states where your employees live and work
- What drug testing rules apply in the states where you have employees?
- Are there laws that limit the actions your organization can take regarding drug test results (for example, medical marijuana)?
- Assessing your regulatory obligations
For more information on reviewing your drug testing policies, check out our recent on-demand webinar, “Marijuana Essentials: A Compliance Update.”
Compliance Expertise in Action
Employers need to maintain a safe and productive workplace, which ultimately helps ensure the success of your business. Sterling is proud to partner with you to offer a wide selection of Drug & Health Screening solutions to help you stay compliant and safeguard your employees.
We will continue to monitor and provide updates when available on this and other important legislative developments. Stay up-to-date on background screening compliance topics by signing up for our Compliance Roundup newsletter.
Please feel free to reach out to Sterling with questions or concerns. Our Drug & Health Screening experts are ready to assist.
References:
1Drug Enforcement Administration, 2024
3American Trucking Associations 2024
4US Department of Transportation
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