TCA Legal Comment – Impact of DOJ’s Proposed Reclassification of Marijuana is Unclear


Impact of DOJ’s Proposed Reclassification of Marijuana is Unclear

May 29, 2024

In May, the Department of Justice issued a notice of proposed rulemaking (NPRM) that proposed the reclassification of marijuana from a Schedule I to a Schedule III controlled substance under the Controlled Substances Act. The Notice is silent on what impact, if any, the reclassification of marijuana as a Schedule III drug will have on federally mandated drug testing for transportation workers.

The DOJ’s notice follows from the recommendation of the Department of Health and Human Services (HHS) in August 2023 to reclassify marijuana as a Schedule III controlled substance given its medical benefits. Schedule I controlled substances include drugs with no currently accepted medical use and a high potential for abuse. Schedule III controlled substances, on the other hand, include drugs having a moderate to low potential for physical and psychological dependence and can be prescribed. Marijuana has been classified as a Schedule I drug since 1970.

Drivers who operate commercial motor vehicles that require a commercial driver’s license are subject to the U.S. Department of Transportation’s Drug and Alcohol Regulations in 49 C.F.R. Parts 40 and 382. The HHS’s Mandatory Guidelines for Federal Workplace Drug Testing Programs govern the DOT’s drug and alcohol testing requirements. Currently, the Guidelines state that a “Federal agency… [m]ust ensure that each [urine] specimen is tested for marijuana.” 88 Fed. Reg. 70,768, 70,780 (Oct. 12, 2023). However, it is unclear whether the HHS will amend the Guidelines, which otherwise state that regulated employers may only test for Schedule I or II drugs.

The DOJ’s notice comes against the backdrop of multiple states enacting laws that prohibit employers from taking adverse action against employees for off-duty use, even for safety-sensitive workers. For example, in California, employers may only terminate or discipline employees who test positive for having psychoactive cannabis metabolites in their system while on the job. In these states, employees terminated for off-duty marijuana use can bring wrongful termination claims and recover damages. Courts have not decided whether the DOT Drug and Alcohol Regulations preempt these types of state laws, especially considering the regulations allow carriers to send drivers to a substance abuse professional program instead of terminating the driver’s employment. Reclassifying marijuana as a Schedule III drug could create further uncertainty.

With respect to DOT-required drug testing, the DOJ’s notice raises more questions than it answers. If the DOJ eventually reclassifies marijuana to a Schedule III drug, the DOT and the Federal Motor Carrier Safety Administration will need to provide guidance about the impact of the reclassification on motor carriers. Comments to the NPRM are due July 22, 2024. For more information, please contact Timothy Wiseman or Christopher Eckhart.