DEA Hearing on Marijuana Rescheduling: What Employers Need to Know
Discover how the DEA’s proposal to reschedule marijuana from Schedule I to III could impact your company’s drug testing policies.
The Drug Enforcement Administration (DEA) is moving forward with its proposal to reschedule marijuana from a Schedule I to a Schedule III drug under the Controlled Substances Act (CSA). This significant change, if finalized, would reshape the regulatory landscape for marijuana, particularly for employers who conduct drug testing as part of their background check programs. As the DEA prepares for a public hearing, employers must understand the implications of this proposal and prepare for the potential impact on their drug testing policies.
Public Hearing Details
The DEA has scheduled a public hearing on December 2, 2024. This hearing is part of the formal rulemaking process required by the CSA, allowing the DEA to gather expert testimony and public input on the proposed rescheduling of marijuana from Schedule I to Schedule III. Employers interested in providing testimony must submit a notice of intention to appear by September 30, 2024. Detailed guidance on how to participate can be found in the notice published in the Federal Register.
This hearing offers employers a key opportunity to engage with the regulatory process and address concerns about how rescheduling might affect workplace drug testing and compliance.
What Does Rescheduling Mean?
The current classification of marijuana as a Schedule I drug reflects the DEA’s stance that it has no accepted medical use and a high potential for abuse, placing it alongside drugs like heroin and LSD. Rescheduling marijuana to Schedule III would acknowledge its medical uses and lower potential for abuse compared to Schedule I and II substances. Schedule III drugs, such as ketamine and anabolic steroids, are considered to have a moderate to low potential for physical and psychological dependence.
However, it’s important to note that rescheduling marijuana does not equate to full federal legalization. Marijuana would remain a controlled substance under the CSA, and its manufacture, distribution, and possession would still be subject to federal criminal prohibitions. Moreover, any drugs containing marijuana would remain subject to the Federal Food, Drug, and Cosmetic Act (FDCA), meaning FDA approval would be required for medical marijuana products to be lawfully introduced into interstate commerce.
Impact on Employers
For employers who conduct drug testing, the rescheduling of marijuana could add a new layer of complexity. The change may lead to increased pressure to accommodate employees who use marijuana for medical purposes, particularly in states that protect medical marijuana users under disability or discrimination laws. Employers operating in safety-sensitive industries—such as transportation, healthcare, or manufacturing—must carefully review and adjust their policies to maintain workplace safety while complying with federal and state regulations.
While the rescheduling would allow for more research into marijuana’s medical applications and potentially reduce the stigma surrounding its use, it will not necessarily resolve the ongoing conflicts between state and federal laws. For example, in states where marijuana is legal for recreational use, the federal rescheduling to Schedule III could still create discrepancies that complicate drug testing and workplace policies.
Dr. Todd Simo, Chief Medical Officer at HireRight, a global background screening and drug testing provider, notes that “marijuana is vastly different from substances like alcohol, where occupational impairment is typically measured in hours. With marijuana, impairment windows after a single use can extend to days. Additionally, the plant’s varying concentrations of psychoactive components make it challenging to establish a standardized medical dose, which raises concerns about its suitability as a Schedule III medication.”
Public Sentiment
During the 60-day public comment period following the DEA’s May 2024 Notice of Proposed Rulemaking, over 42,900 comments were submitted, with nearly 70% supporting not just the rescheduling of marijuana but its full decriminalization or descheduling. This overwhelming support highlights the growing public demand for broader marijuana reform beyond the limitations of rescheduling.
ADA Implications and Litigation Risks
One of the most pressing concerns for employers is the potential for an increase in Americans with Disabilities Act (ADA) claims. Courts have traditionally rejected ADA claims involving marijuana use because marijuana has been illegal under federal law. However, if marijuana is reclassified, employees using medical marijuana could request reasonable accommodations, leading to new legal challenges for employers.
Employers will need to balance these accommodation requests with their obligations to maintain a safe work environment, particularly in safety-sensitive roles. This will likely require a thorough review of current policies and practices related to drug testing, and employers should be prepared to engage in an interactive process with employees who request accommodations for medical marijuana use.
Looking Ahead
The rescheduling of marijuana is a significant regulatory shift, but it does not eliminate the complexities surrounding marijuana use in the workplace. As the DEA’s December hearing approaches, employers should take this opportunity to engage with the process and reassess their drug testing policies. By staying informed and proactive, employers can ensure they remain compliant with current laws and future regulatory changes.
Whether you plan to participate in the hearing or simply assess your internal policies, staying ahead of the evolving legal landscape is critical. The December 2 hearing will provide a key opportunity for employers, advocates, and experts to weigh in on this important issue and shape the future of marijuana regulation.
Release Date: September 19, 2024
Alonzo Martinez
Alonzo Martinez is Associate General Counsel at HireRight, where he supports the company’s compliance, legal research, and thought leadership initiatives in the background screening industry. As a senior contributor at Forbes, Alonzo writes on employment legislation, criminal history reform, pay equity, AI discrimination laws, and the impact of legalized cannabis on employers. Recognized as an industry influencer, he shares insights through his weekly video updates, media appearances, podcasts, and HireRight's compliance webinar series. Alonzo's commitment to advancing industry knowledge ensures HireRight remains at the forefront of creating actionable compliance content.