What Effect Might the Rescheduling of Marijuana Have on Employers?

More employers likely will permit off-work use of cannabis if marijuana is rescheduled from a Schedule I controlled substance to a less-dangerous Schedule III drug, as the Biden administration has proposed.

Many companies already don’t test for marijuana use, though employers with safety-sensitive positions remain wary of its usage and have zero-tolerance policies. In addition, a few jurisdictions restrict drug testing for marijuana.

There are already medications that contain THC—marijuana’s psychoactive ingredient—but rescheduling of marijuana presumably “would open the door to more and better options for people as to whom marijuana and marijuana products would be medically helpful,” said Nancy Delogu, an attorney with Littler in Washington, D.C.

If marijuana is rescheduled, it’s possible some individuals will be entitled under federal law to use marijuana products to treat medical conditions at work, she added, though employers are not required to permit on-the-job cannabis use or intoxication under state laws. When the use of a medication poses a threat to safety, employers should act to ensure the workers are fit for duty, Delogu said.

As for recreational marijuana use, if rescheduling goes forward, it still would not make the use or possession of marijuana without an actual prescription legal under federal law.

“Rather, marijuana will be more legally analogous to opioids,” Delogu explained. “Prescription opioids are lawful to use by those for whom they are prescribed, but abuse, including use by someone other than for whom prescribed, is still illegal.”

Moreover, employers can and do discipline workers who use opioids without a valid prescription, she noted.

Which Employers Do and Don’t Test for Marijuana Use

“That said, many employers already find it burdensome to conduct marijuana testing, particularly prehire marijuana testing,” Delogu said.

However, employers in manufacturing, health care, transportation, warehousing, and other sectors that require driving or other safety-critical work are more likely to bar off-work use of marijuana, and to test for that use, she said.

Among those employers that do not conduct prehire marijuana testing, some have found that they have hired workers who have marijuana dependence or other substance misuse issues, Delogu noted.

Policy Implications

Employers with policies that try to head off risky substance use should modify their policies in response to state marijuana laws, Delogu said.

“If the employer has a zero-tolerance policy, and that’s lawful despite recent legalization in a jurisdiction, it’s helpful for everyone to understand what is expected,” she noted. “If the state law requires tolerance for off-work uses, workers need to know that too and understand that using or possessing during the workday is still prohibited and can affect their employment. In my experience, clarity would be helpful all around.”

Employers should also strive to update drug-testing policies to comply with all applicable federal, state, and local laws regarding marijuana. “That is particularly true as more states and cities enact laws that prohibit or restrict drug testing for marijuana, such as California, New York, Washington [state and] Philadelphia,” said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.

A big challenge will be for employers in the handful of states that still do not recognize any legal use of marijuana, she added. “Those employers will have to shift their perception of marijuana as being unacceptable for all purposes to allowing it for approved medical use under federal law,” Russo said.

As of February 2024, most states allow for the use of cannabis for medical purposes: 38 states and the District of Columbia allow for the use of cannabis for medical purposes through comprehensive programs, according to the Centers for Disease Control and Prevention. In addition, 24 states and the District of Columbia allow adults to use marijuana for nonmedical purposes. Jim Reidy, an attorney with Sheehan Phinney in Manchester, N.H., said, “Employers should focus on compliance with applicable state cannabis laws.”

Companies, especially those with safety-sensitive positions, should remain vigilant, prohibit employees from working under the influence of cannabis, consider reserving the right to test employees suspected of impairment, and consistently enforce that policy, he said.

Training, EAPs Needed

Some employers treat cannabis like alcohol, meaning they assume employees may use it on their own time but prohibit employees from consuming it at work or coming in to work under the influence, Reidy said. “The problem is that with edibles—compared to smoking or vaping, where the pungent smell can be easily detected—it has become more difficult to detect cannabis use if an employer doesn’t test for the substance,” he said.

Employers should train their supervisors on recognizing impairment and addressing it properly in the states where marijuana testing is prohibited, Russo said.

Offering programs—such as employee assistance programs (EAPs)—that educate employees about the dangers of substance misuse and assisting those who want to improve their health often makes sense, Reidy added.