President Trump Mandates Effort to Speed-Up Moving Marijuana to a Schedule III Drug
U.S. President Donald Trump signed an executive order Thursday evening that could change the way marijuana is regulated in the country and create confusion for drug testing policies.
The order instructs U.S. Attorney General Pam Bondi to take “all necessary steps” to complete a rulemaking process to reschedule marijuana to a Schedule III drug from a Schedule 1 drug under the Controlled Substances Act.
Moving marijuana to a Schedule III designation would mean that it has less potential for abuse than drugs that are Schedule I—such as heroin, lysergic acid diethylamide (LSD), and 3,4-Methylenedioxymethamphetamine (ecstasy)—and Schedule II—like cocaine, methadone, oxycodone, and fentanyl.
Schedule III drugs are classified as having an acceptable medical use in treatment and the potential for moderate—or low—physical dependence or high psychological dependence in the event of drug abuse. Other drugs in this category include ketamine, anabolic steroids, testosterone, and products that contain less than 90 milligrams of codeine per dosage unit.
Trump’s actions follow a recent push that began under his predecessor—former U.S. President Joe Biden—to reschedule marijuana. In 2023, the U.S. Department of Health and Human Services (HHS) recommended that the Drug Enforcement Agency reschedule marijuana to a Schedule III controlled substance because it found that the drug has an acceptable medical use and that health care practitioners are authorized to recommend it to treat several conditions.
In 2024, the U.S. Department of Justice issued a proposed rule to follow HHS’s recommendation and reschedule marijuana. The rule received more than 40,000 public comments and is awaiting an administrative law hearing. Thursday’s executive order appears designed to push that proposed rule across the finish line.
Even if marijuana is rescheduled, though, recreational use of the drug will not be legal at the federal level in the United States. This disparity will continue to make marijuana testing and screening a contentious and confusing issue for employers with employees in multiple U.S. states—many of which have legalized recreational or medical use of marijuana.
Testing has become “very complicated for companies, particularly multi-state companies that are trying to have uniform standards on testing and their substance abuse policies,” says Michael Perkins, president of Frontline HR Solutions and corporate counsel/senior consultant with the Labor Relations Institute.
As a result, some employers that can stop testing for marijuana usage have discontinued screening for it in drug testing or discontinued pre-employment drug testing altogether, Perkins adds.
Safety and Security-Sensitive Industries
While some private companies have discontinued screening for marijuana in employee drug testing, others in safety and security-sensitive industries are still required to do so.
In the 1980s, then-U.S. President Ronald Reagan issued an executive order that requires mandatory drug testing—including for marijuana—for federal employees that are in law enforcement, national security, protection of life and property, public health or safety, and other functions that require a high degree of public trust.
Additionally, three main government agencies—the U.S. Department of Transportation (DOT), the U.S. Department of Defense (DOD), and the Nuclear Regulatory Commission—have laid out requirements for private industries under their regulatory authority to meet certain drug testing requirements.
For instance, the DOT mandates that safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries conduct drug testing for five classes of drugs: marijuana metabolites, cocaine metabolites, amphetamines, opioid metabolites, and phencyclidine (PCP).
So far, Perkins says there is no indication that Thursday’s executive order will change anything related to DOT drug testing and enforcement requirements.
“They have very vigorous requirements for drivers and rigorous screening for pilots, and others in those types of safety sensitive positions,” Perkins says. “And I don’t think there’s any big cry out to reduce that testing or reduce those standards.”
The DOD requires contractors with access to sensitive, classified information to maintain a drug-free workplace policy. In 2021, for instance, then U.S. Director of National Intelligence Avril Haines wrote a memo that reiterated that agencies should advise prospective national security workforce employees that they should refrain from future marijuana use after completing the national security vetting process.
The Nuclear Regulatory Commission also requires commercial nuclear power plants, fuel cycle facilities, uranium recovery sites, and medical, academic, industrial, and general licenses of nuclear materials to meet fitness-for-duty requirements of ensuring employees are not under the influence of any substance that could impair their ability to perform their duties.
Many state and local law enforcement officers and emergency service providers are also required to undergo drug testing, but their rules and regulations vary depending on jurisdiction.
Security officers are not always considered safety-sensitive positions for drug testing for marijuana use when off-duty. Designating a security officer as a safety-sensitive position can depend on a variety of factors, including if they are armed or unarmed and working for the private or public sector.
“It would depend on the nature of their responsibilities, but an argument could certainly be made that [security officers] are in a sensitive position requiring someone to be physically coordinated and responsive and alert at all times,” Perkins explains. “I would certainly consider it a safety sensitive position, whether the regulator or court would consider it would be another story.”
While U.S. states may have different laws and regulations on drug testing, including for security officers, Perkins says employers also need to consider court cases and decisions as well when crafting policies and determining if they are in a safety and security-sensitive industry.
“I always recommend to people when they’re setting up their policies or when they’re enforcing a drug testing policy—if they have to terminate someone—to make sure they talk to their attorney in that state who is really familiar with the laws of that state to make sure they are on firm ground,” Perkins adds.
Testing Issues
One development that could help employers is if there were widely available testing solutions to determine if an individual is impaired by marijuana. Most current testing methods only detect if someone has used marijuana within a certain window—not how that usage has impaired that person’s ability to function.
“If somebody used marijuana last week, they may still fail a drug test because they have enough THC in their system—particularly in a urine test, which is still the most common testing method,” Perkins says. “They may fail their drug test, even though they’re not really impaired at the time.”
This approach to drug screening for marijuana doesn’t address the true concern that many employers have—knowing that employees are coming to work and are not under the influence of an illegal or controlled substance that is going to impair their ability to do their job.
“I think that’s every employer’s concern. They don’t want anybody operating a sensitive piece of equipment or driving a vehicle or operating heavy equipment if they’re impaired by marijuana or any other altering substance,” Perkins says. “The problem is that there is not a great test—that I’m aware of—that’s really addressing that issue.”
Overall, the lack of testing ability and of uniformity in regulating marijuana in the United States has created more confusion for employers and results in workplaces that are less safe, Perkins says.
“Particularly if people in safety sensitive positions are using marijuana—there’s no question that it does have an impact,” he explains. “If someone is impaired at work, it does have an impact on their reflexes, on their alertness, on their capacity to react, so I do see it as a safety issue.”
