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Marijuana Rescheduling Is Still on Hold: What Employers Should Do With Their Drug Testing Programs Now

22 minutes ago
4 min read
Marijuana Rescheduling Is Still on Hold
Marijuana Rescheduling Is Still on Hold

If you have been waiting for federal marijuana rescheduling to settle before updating your drug testing policy, the wait just got longer. On October 22, 2026, the Drug Enforcement Administration's chief administrative law judge issued an order that keeps the broader rescheduling proceeding paused until at least November 5. Here is what happened, what it means for your workplace, and what you can do now.


What happened


Federal marijuana policy is moving on two separate tracks:

  • Already final: In April 2026, the Department of Justice issued an order placing FDA-approved marijuana products, and marijuana products regulated under a state medical marijuana license, in Schedule III of the Controlled Substances Act. That order is in effect.

  • Still proposed: The DEA's proposal to move marijuana more broadly from Schedule I to Schedule III, which would reach recreational products, is not final. An 11-day hearing on the proposal ended in July.


On September 23, the U.S. Government Accountability Office (GAO) released a report finding gaps in DEA's scheduling policies and procedures. Opponents of rescheduling asked to add the report to the record, and on September 29 Chief Administrative Law Judge Derek C. Julius paused the proceeding to consider that request.


Notably, under the leadership of Executive Director Jo McGuire, the National Drug and Alcohol Screening Association (NDASA), along with DUID Victim Voices and Dr. Kenneth Finn. were among the primary moving parties that advocated to include the GAO report and delivered pivotal testimony during the hearing process.   


In his October 22 order, Judge Julius allowed the GAO report into the record and permitted written briefs about it, but declined to reopen the hearing for new testimony. Briefs are due October 29 and replies are due November 5. After that, the judge is expected to certify the record and send a nonbinding recommendation to the DEA Administrator, who makes the final decision. A final rule could also face court challenges.


The bottom line: broader rescheduling is still a proposal, and there is no firm date for a final decision.


Why it matters to employers


For most employers, nothing changes today, and that is the key point.


DOT-regulated employers. DOT's rules are unchanged. DOT's Office of Drug and Alcohol Policy and Compliance (ODAPC) has said that a state medical marijuana card, physician recommendation, or dispensary receipt is not a legitimate medical explanation that would allow a Medical Review Officer to verify a marijuana-positive DOT test as negative. Keep testing for marijuana exactly as 49 CFR Part 40 requires.


Non-DOT employers. Rescheduling, even if finalized, would not by itself legalize recreational marijuana or require employers to permit use. Your obligations come mainly from state and local law, and the states where many of our clients operate take very different approaches:

  • New York: Labor Law 201-d protects lawful off-duty, off-premises cannabis use by adults. New York Department of Labor guidance says employers generally should not test for cannabis unless an exception applies, such as a federal or state legal requirement or an employee showing specific articulable symptoms of impairment at work. Under that guidance, a positive test alone does not establish impairment.

  • Florida: Medical marijuana is legal, but state law (section 381.986(15), Florida Statutes) does not require employers to accommodate medical marijuana use. In July 2026, a Florida appeals court upheld an employer's enforcement of a drug-free policy against a medical marijuana cardholder under a specific collective bargaining agreement.

  • North Carolina: Recreational marijuana is not legal, and the state has no comprehensive medical marijuana program, although bills have been filed.


Practical steps to take now


  • Keep DOT and non-DOT programs clearly separate. Employees in DOT safety-sensitive roles should be tested under Part 40. Your non-DOT policy should be written for the states where your people actually work.

  • Review non-DOT testing triggers state by state. Pre-employment marijuana testing that is routine in one state may be restricted in another, especially for New York employees.

  • Train supervisors on reasonable suspicion. Documented, observable signs of impairment matter, particularly in states where a positive test alone may not support discipline.

  • Review how you handle medical marijuana disclosures. Have a consistent process, and talk with counsel before acting on a positive result alone.

  • Do not rewrite your policy around a rule that is not final. Watch for the judge's recommendation after November 5, and for any DOT or HHS guidance if rescheduling moves forward.


How UBS can help


Unique Background Solutions administers DOT and non-DOT drug and alcohol testing programs for employers in North Carolina, New York, Florida, and nationwide. Our team tracks these developments so you can focus on running your business. If you would like a second set of eyes on your testing policy, panels, or reasonable suspicion procedures, contact us at www.uniquebackground.com.


Sources


This post is general information, not legal advice. Employers should consult their own legal counsel about their specific situation.

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