As we reported previously, on April 22, 2026, the U.S. Department of Justice announced an order immediately moving two categories of marijuana into Schedule III under the Controlled Substances Act: (1) “drug products containing marijuana that have been approved by the Food and Drug Administration (FDA)” and (2) “marijuana subject to a state medical marijuana license.” Recreational marijuana is not covered by this change. We noted that the Department of Transportation (“DOT”) was expected to issue guidance regarding how, if at all, this change would affect its drug testing protocols.
In short, the DOT maintains that medical marijuana is not permitted for DOT-regulated positions because marijuana is not a controlled substance approved by the Food and Drug Administration and therefore, any prescription or marijuana card provided, would not constitute a “legitimate medical explanation” under applicable regulations. As a result, a Medical Review Officer cannot, under any circumstances, report a “negative” result to the employer in the face of a laboratory-confirmed marijuana positive drug test result. The DOT stated, “In addition, marijuana use is not compatible with safety-sensitive functions.”
Therefore, employees whose positions are subject to DOT drug testing requirements remain prohibited from using medical marijuana under federal law. The labor and employment attorneys at Berchem Moses, PC can help you evaluate your drug policies to ensure compliance with recent regulatory changes
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