Published: April 21, 2026 | Reading Time: 8 minutes | Author: Brent Ramey, CEO of VICTIG Background Checks
The Ground Just Shifted — Again
On December 18, 2025, President Trump signed an Executive Order directing the Department of Justice to expedite the reclassification of marijuana from a Schedule I to a Schedule III controlled substance under the Controlled Substances Act. Within days, HR inboxes across the country were flooded with questions from employees who assumed this meant the rules had changed.
They hadn’t. Not yet — and possibly not in the way most people expect.
Marijuana policy is the most rapidly shifting area in employment law right now, and it’s creating a three-way collision between federal law, state law, and employer policy that HR teams are struggling to navigate. Some employers have stopped testing for marijuana entirely — sometimes unnecessarily and sometimes illegally. Others are applying policies that violate their employees’ state-law protections without realizing it.
This post cuts through the confusion. Here’s exactly where things stand in 2026, what the rescheduling order actually means for your drug testing program, and how to build a policy that holds up legally regardless of what happens next.
What the Schedule III Executive Order Actually Means
Let’s start with the question everyone is asking: does the Trump Executive Order mean employers can no longer test for marijuana?
The short answer is no — not yet, and possibly not even after rescheduling is finalized.
The White House directed the DOJ and DEA to expedite rulemaking to move marijuana to Schedule III in late 2025, immediately triggering questions from employees and assumptions about what’s allowed. But an Executive Order directing agencies to expedite rulemaking is not the same as a finalized rule. Rescheduling requires going through the full federal rulemaking process — notice, public comment, and final publication — before it takes legal effect.
Rescheduling marijuana to Schedule III will not legalize marijuana for recreational purposes. State and local recreational marijuana laws will remain intact.
And critically for employers: on December 19, 2025, DOT published a compliance notice making clear that until rescheduling is finalized, DOT drug testing processes remain unchanged. Safety-sensitive transportation employees will continue to be tested for marijuana.
The practical reality is this: the rescheduling timeline remains uncertain. While the Executive Order signals intent to expedite and take political credit for the rulemaking process, the proposed rescheduling of marijuana will not result in the legalization of recreational use.
Bottom line for employers: Until final federal rulemaking is complete and an official effective date is published, your drug testing program — including marijuana — should operate as usual. The confusion in the market right now is the risk, not the actual legal change.
The Bigger Challenge: State Law Patchwork
Federal rescheduling gets the headlines, but the real complexity facing most employers today has nothing to do with the federal government. It’s the state-by-state patchwork of marijuana laws that has made consistent drug testing policy nearly impossible for multi-state employers.
Here’s where things actually stand:
States with recreational marijuana AND employee protections: A growing number of states — including California, New York, New Jersey, Illinois, and Maryland — have legalized recreational marijuana and enacted laws that restrict employers from taking adverse action based solely on off-duty marijuana use. In New Jersey, a positive marijuana test alone is not enough to fire an employee unless there is evidence of impairment or policy violations. Policies must be clear, documented, and consistently applied.
States with recreational marijuana but fewer employer restrictions: Some states have legalized recreational use but give employers more latitude. Kansas has not legalized recreational marijuana, which simplifies many compliance decisions for employers there — they may prohibit marijuana use entirely and discipline or terminate employees who test positive.
States with medical marijuana protections: Even in states that haven’t fully legalized recreational use, medical marijuana protections can create employer obligations. Under Delaware law, employers are not permitted to assume patient employees are under the influence of medical marijuana because of the detection of marijuana in a drug test. Under New Jersey’s medical marijuana statute, employers must offer employees the opportunity to provide a legitimate medical explanation following a positive test result.
The impairment measurement problem: Here’s the core issue that makes marijuana fundamentally different from other substances: while no state prohibits an employer from enacting policies curbing the use or possession of marijuana while on duty or when someone is impaired at work, drug tests are unable to measure impairment. THC metabolites can remain detectable in urine for days or weeks after use — long after any impairment has passed. This means a positive test result doesn’t tell you whether the employee was impaired at work, which is exactly what many state laws now require you to demonstrate before taking action.
DOT-Regulated Employers: No Change
If your organization operates in a DOT-regulated sector — trucking, rail, aviation, pipeline, or transit — the message is simple and unambiguous: nothing has changed.
The DOT has issued clear guidance for 2026: until the rescheduling process is fully finalized and specific agency rules are rewritten, marijuana use remains a prohibited substance for safety-sensitive employees. Even in states where marijuana is legal for medical or recreational use, federally regulated jobs must refrain from cannabis consumption to remain eligible for employment. A positive THC test can lead to suspension or disqualification from these roles.
DOT-regulated employers must continue to conduct:
- Pre-employment testing before placing anyone in a safety-sensitive function
- Random testing throughout the year at federally mandated rates
- Reasonable suspicion testing when trained supervisors observe specific behavioral indicators
- Post-accident testing following qualifying incidents
- Return-to-duty testing following a violation, with follow-up testing thereafter
There is a potential wrinkle on the horizon. DOT regulations only permit drug testing for Schedule I and II drugs, so rescheduling marijuana to Schedule III could significantly impact drug testing programs for federally regulated transportation employers. However, both the DOT and legal commentators have indicated that this outcome is not guaranteed, and no employer should act on that assumption until final rules are issued.
What State Laws Actually Require of Employers
For non-DOT employers, the applicable law is determined by the state or states where your employees work. Here’s a practical breakdown of the key categories:
“Off-Duty Use Protection” States
These states prohibit employers from taking adverse action based solely on an employee’s lawful off-duty marijuana use. They include California, Colorado, New Jersey, Illinois, New York, Maryland, and others. In these states, a positive pre-employment marijuana test alone may not be sufficient grounds to rescind a job offer — particularly for non-safety-sensitive roles.
Key implications:
- Your written drug testing policy must be clear about what use is and is not permitted
- Adverse action based on marijuana must typically be tied to demonstrated impairment at work, not just a positive test result
- Policies must be applied consistently — selective enforcement creates discrimination exposure
Medical Marijuana Accommodation States
Several states require employers to engage in an individualized review when an employee or applicant discloses that they are a registered medical marijuana patient. An employee might ask for a reasonable accommodation to consume marijuana for a medical condition, such as chronic pain, nausea, muscle spasms, epilepsy, insomnia, anxiety, or post-traumatic stress disorder.
The accommodation analysis is complex. Currently, federal law does not require accommodation of marijuana use because it remains federally illegal — but if marijuana is rescheduled, employees may be able to request marijuana use as a reasonable accommodation under the ADA. Such ADA claims have previously been rejected because marijuana use is illegal at the federal level, but that could change. State disability discrimination laws may also add accommodation obligations.
States with Broad Employer Testing Authority
States that have not legalized marijuana, or that have legalized it without enacting employee protection laws, give employers considerably more freedom. In these states, employers may generally prohibit marijuana use, test pre-employment and randomly, and terminate based on a positive result without individualized review.
Building a Marijuana Drug Testing Policy That Holds Up in 2026
Given the complexity of the current landscape, a one-size-fits-all marijuana policy is a compliance liability for any multi-state employer. Here’s how to approach it:
1. Start With a Written, Role-Based Policy
Your drug testing policy should be in writing, distributed to all employees, and clearly state:
- What substances are tested
- When testing occurs (pre-employment, random, post-accident, reasonable suspicion, return-to-duty)
- What a positive result means for each role type
- How the company handles medical marijuana disclosures
- Whether safety-sensitive positions have different or stricter requirements
2. Segment by Role — Not Just by State
A one-policy approach creates legal risk. Safety-sensitive roles — those involving driving, operating heavy equipment, working with controlled substances, or direct patient care — warrant stricter policies and are easier to defend. Non-safety-sensitive roles in states with off-duty use protections may require a more nuanced approach.
3. Apply State-Specific Addenda
For multi-state employers, the cleanest approach is a master policy with state-specific addenda that address each state’s particular requirements. This is more work upfront but dramatically reduces litigation exposure.
4. Train Supervisors on Reasonable Suspicion
In states where impairment must be demonstrated rather than inferred from a test result, your supervisors become critical. They need documented training on the specific, observable behavioral indicators that trigger a reasonable suspicion test — slurred speech, erratic behavior, coordination problems — and how to document those observations before ordering a test.
5. Review Your Testing Panel
Employers should also consider whether to begin testing for substances such as fentanyl or ketamine that may not be included within standard panel drug tests. The opioid and synthetic drug crisis has evolved significantly — your testing panel should reflect current threats, not just the standard five-panel screen from ten years ago.
6. Revisit Your Policy When Rescheduling Is Finalized
Rescheduling isn’t done yet, but it’s coming. When it is finalized, it will likely require policy updates for many employers — particularly DOT-regulated ones and those currently relying on federal illegality as their policy foundation. Build a trigger into your compliance calendar now to review and update when the final rule publishes.
The Most Common Marijuana Testing Mistakes Employers Make
Abandoning marijuana testing entirely in legal states. Legalization doesn’t mean you’re required to allow impairment at work. Most states permit employers to maintain drug-free workplace policies and test for impairment in safety-sensitive roles.
Applying a national policy without state-specific adjustments. What’s compliant in Kansas may be a lawsuit in California. Multi-state employers need state-by-state review, not a single national policy.
Treating a positive marijuana test the same as any other positive. In a growing number of states, this approach alone is sufficient to lose an employment lawsuit. The context — when the use occurred, whether the employee is a medical patient, whether the role is safety-sensitive — all matters.
Failing to train supervisors on observable impairment. If impairment documentation is your legal hook, but your supervisors don’t know what to document or how, you have no hook.
Not updating your policy since 2020. The legal landscape has changed dramatically in the last five years. If your marijuana drug testing policy predates 2023, it almost certainly needs to be revisited.
How VICTIG Supports Your Drug Testing Program
VICTIG’s drug testing solutions are built for exactly this kind of complexity — multi-state employers, safety-sensitive workforces, and a regulatory environment that requires flexibility.
Our drug testing services include:
- Pre-employment and random drug screening with nationwide collection network access — thousands of collection sites so candidates and employees can test close to home or work
- DOT-compliant drug and alcohol testing — chain-of-custody collection, federally certified laboratory analysis, and MRO review, all in compliance with DOT regulations
- Expanded drug testing panels — including synthetic opioids, fentanyl, and other emerging substances beyond the standard five-panel screen
- Oral fluid testing options — an emerging method that better approximates recency of use for some employers and situations
- Policy review support — our compliance team can help you evaluate your current marijuana testing policy against the state laws applicable to your workforce
- Integrated screening platform — drug testing orders managed alongside background checks in a single workflow through our Instascreen system
The marijuana legal landscape is going to keep changing. Your drug testing program should be built to adapt with it.
Want to review your current drug testing policy or program? Contact our team for a free consultation.
Frequently Asked Questions
Does the Trump Executive Order on marijuana rescheduling mean I have to stop testing? No. An Executive Order directing agencies to expedite rulemaking is not a finalized legal change. Until the DEA completes the full rescheduling process and publishes a final rule, drug testing programs — including marijuana testing — should continue as usual. DOT confirmed this explicitly in December 2025.
Can I still test for marijuana in states where it’s legal for recreational use? In most cases, yes — but with important caveats. Many states that have legalized recreational marijuana have also enacted laws protecting employees from adverse action based solely on lawful off-duty use. You can still test, but taking action on a positive result alone may expose you to liability in those states. Consult employment counsel for your specific state requirements.
Do I have to accommodate an employee who uses marijuana medically? It depends on the state. Some states require employers to engage in an individualized accommodation review for medical marijuana patients. Federal law currently does not require accommodation because marijuana remains federally illegal, but this may change if rescheduling is finalized. Safety-sensitive roles generally have more employer latitude.
What if an employee tests positive for marijuana but claims they used it days ago, off-duty, in a state where it’s legal? This is exactly the scenario that state off-duty use protection laws are designed to address. In states with those protections, a positive test result tied to off-duty legal use may not be sufficient grounds for adverse action without evidence of on-duty impairment. This is why supervisor training and written policy are critical.
Should I update my drug testing policy now, before rescheduling is finalized? Yes — but not because of the rescheduling order specifically. Most employers’ marijuana policies are already out of date relative to state law changes over the last several years. A policy review is warranted now, with a second review planned for when the federal rescheduling process concludes.
Are there drug tests that better measure current impairment? Current urine drug tests measure THC metabolites that can remain in the system for days or weeks — not current impairment. Oral fluid testing detects more recent use than urine testing, which makes it a better proxy for recency in some situations, though it is not a true impairment measurement. No currently available test reliably measures real-time marijuana impairment the way a breathalyzer measures alcohol.
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