POTUS Orders DOJ To Complete Rulemaking Process To Reschedule Marijuana Expeditiously: Three Employer Considerations

Takeaways

• The EO directs the DOJ to complete the rulemaking process to reschedule marijuana to a Schedule III drug. Since 1970, marijuana has been classified as a Schedule I drug, defined as having no currently accepted medical use and a high potential for abuse.
• Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence.
• Until the DOJ officially moves to reschedule marijuana, employers' drug testing and accommodation obligations, among other related issues, including under state and local laws, continue intact.

Related links

• "Increasing Medical Marijuana and Cannabidiol Research" (EO)
• Department of Justice Publishes Notice of Proposed Rulemaking to Reschedule Marijuana to Schedule III

Article

President Donald Trump issued the "Increasing Medical Marijuana and Cannabidiol Research" Executive Order (EO) on Dec. 18, 2025. Contrary to what has been reported by many news outlets, the EO does not, by itself, reschedule marijuana to a Schedule III drug. Rather, it directs the Department of Justice (DOJ) to "take all necessary steps to complete the rulemaking process related to rescheduling marijuana to Schedule III of the CSA in the most expeditious manner in accordance with Federal law, including 21 U.S.C. 811."

The EO expresses the administration's desire to make medical marijuana more accessible for medical research and includes criticism of the federal government's "long delay in recognizing the medical use of marijuana."

DEA Classification

The Drug Enforcement Administration (DEA) is the arm of the DOJ that is responsible for classifying controlled substances based on their potential for abuse and accepted medical use. Under the federal Controlled Substances Act (CSA), the DEA classifies drugs into five distinct categories, or schedules, depending on the drug's acceptable medical use and its potential for abuse or dependence.

As the drug schedule changes, so does the abuse potential. Schedule I drugs are defined as having no currently accepted medical use and a high potential for abuse. Schedule V represents drugs with the least potential for abuse.

Marijuana

The DEA has classified marijuana as a Schedule I drug since the inception of the CSA in 1970. In May 2024, the DOJ issued a proposed rule to reschedule marijuana to Schedule III.

Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence. Some examples of Schedule III drugs are Tylenol with codeine, ketamine, buprenorphine, and anabolic steroids.

The DEA has reviewed the issue of rescheduling marijuana several times over the years, most recently in 2024. Hearings were scheduled in 2024 and then postponed. No actions have been taken since that time. The current head of the DEA has been vocal in his opposition to marijuana legalization, so it remains to be seen what the DEA will do to implement the EO.

Implications

Rescheduling marijuana to Schedule III will present many questions for employers when enforcing their substance abuse and drug testing policies.

First, rescheduling marijuana to Schedule III will not legalize marijuana for recreational purposes. This means that state and local recreational marijuana laws will remain intact.

Second, it is unclear how federal regulation will impact state medical marijuana laws. Should rescheduling be completed, employees potentially may request marijuana use as a reasonable accommodation under the Americans With Disabilities Act (ADA). Such ADA claims have previously been rejected by courts because marijuana use is illegal at the federal level. However, state laws, depending on how they are worded, can add a layer of complexity.

Third, employers who are regulated by Department of Transportation (DOT) regulations will have to watch for revisions to DOT's drug and alcohol testing regulations. Those regulations only permit drug testing for Schedule I and II drugs. Rescheduling marijuana to Schedule III will significantly impact drug testing programs for federally regulated transportation employers. For now, reported comments from Transportation Secretary Sean Duffy's office shortly after the EO's signing reinforce the existing bar on marijuana use by those is safety-sensitive DOT-regulated roles.

Unless and until the DEA officially moves to reschedule marijuana, employers conducting drug testing, including those subject to the DOT's drug testing requirements, should operate as usual.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.