By: Kayla M. Jacob and Rachael Jeanfreau
It’s official. Medical marijuana has finally been rescheduled from a Schedule I to a Schedule III controlled substance. Well, sort of.
In late April 2026, the Department of Justice (“DOJ”) issued a final order immediately rescheduling certain medical marijuana products to Schedule III, including (1) FDA-approved products containing marijuana, and (2) marijuana products regulated by a state medical marijuana license. All other forms of marijuana, including recreational marijuana, have not been rescheduled. However, an expedited administrative hearing process to consider the broader rescheduling of marijuana has been set for June 29, 2026.
So what exactly does this mean for employers? Here are a few answers to some burning questions surrounding marijuana rescheduling.
Q: When is rescheduling effective?
The order rescheduling certain medical marijuana was made effective upon its issuance in April 2026.
Q: What, if anything, do employers need to do to comply?
This is an open question, as the order leaves many questions unanswered.
Prior to the rescheduling, Federal disabilities law did not require employers to accommodate the use of medical marijuana because all forms of marijuana (medical and recreational) were illegal under Federal law. Now, however, at least according to the order, certain forms of medical marijuana are legal. Thus, the question is whether, and if so, to what extent, employers are required to accommodate the use of medical marijuana under Federal law. Unfortunately, the order does not clearly answer this. The order states nothing about employers, employees’ use of medical marijuana, or workplace accommodations for employees’ use of medical marijuana. Notably, no law permits intoxication on-the-job, even with rescheduling.
Q: What exactly is “medical marijuana regulated by a state medical marijuana license?”
Because marijuana has not been rescheduled entirely, the definition of medical marijuana varies by state. Each state that permits medical marijuana use has defined it. Employers should review medical marijuana laws in each state in which they operate to determine what constitutes medical marijuana in a particular state.
Q: Should employers amend their drug testing policies?
It depends. Employers should review the language in drug and other policies at least annually to ensure compliance with current laws. However, a blanket overhaul of drug policies may not be required depending on the current language used.
Q: Can the DOJ’s order be overturned?
Possibly. Pending litigation seeks to block the DOJ’s rescheduling efforts. However, no court orders have yet been issued to stop the rescheduling.
Q: Is recreational marijuana legal?
No. Recreational marijuana has not been rescheduled and remains a Schedule I substance that is illegal under Federal law.
Bottom line, an employer’s approach to dealing with marijuana at work remains as hazy as ever despite the recent rescheduling, leaving employers with more questions than answers for the foreseeable future. Businesses should consult with their labor & employment counsel as these issues arise and when responding to questions from their employees about marijuana, which will only continue to increase in light of this recent Federal activity.
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