Excerpted from a Seyfarth Shaw LLP Blog by Adam Young, Jennifer Mora and Frederick Smith
President Trump’s December 2025 Executive Order signals a possible shift in federal marijuana policy, but many employers still have a lawful and legitimate basis to prohibit impairment at work. Employers that test for marijuana should continue to monitor developments and evolving legal risk. Moreover, because employees may not fully understand the implications of the Executive Order, employers should remind employees of their policy expectations.
Since 1970, marijuana has been classified as a Schedule I controlled substance, defined as having no currently accepted medical use and a high potential for abuse. Over the years, presidents have floated the idea of reclassifying marijuana but not taken steps to do so. In 2023, the Food and Drug Administration and the Department of Health and Human Services (DHHS) determined that marijuana has a currently accepted medical use, and DHHS recommended to the Drug Enforcement Agency that marijuana be classified as a Schedule III drug.
In May 2024 the United States Department of Justice (DOJ) published a formal proposal to reschedule marijuana from a Schedule I to a Schedule III drug. Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence. Schedule III drugs are regulated by the Food and Drug Administration and the Drug Enforcement Agency, and they include acetaminophen (Tylenol) with codeine, ketamine, anabolic steroids, and testosterone. The slow rescheduling process is currently in process and awaiting an administrative law hearing.
On December 18, 2025, President Trump signed an Executive Order, “Increasing Medical Marijuana and Cannabidiol Research.” In it, he directed the DOJ to expedite the process of rescheduling marijuana from Schedule I to Schedule III.
While this EO perhaps signals an intent to expedite and take political credit for the rulemaking process, rescheduling timeline remains uncertain.
This rescheduling marks a significant policy change and the practical implications for employers—particularly those with safety-sensitive workforces—remain complex. However, the proposed rescheduling of marijuana will not result in the legalization of recreational use.
Workplace Implications
Many states and localities have laws regulating drug policies and drug testing and providing protections to recreational and medicinal marijuana users. Accordingly, employers must be cognizant of the specific landscape for their work forces. Even after rescheduling, employers will still be able to prohibit marijuana use and impairment in the workplace. Employers with drug testing programs who test for marijuana (THC metabolites) will not be prohibited from doing so by the rescheduling (but must remain mindful of restrictions and other limitations per applicable state and local law).
For many employers, the risks of impairment remain unchanged. The National Safety Council has long endorsed a zero-tolerance policy, emphasizing that no level of cannabis use is safe for employees, especially those working in roles where safety is paramount. That said, because no drug test can prove time of impairment, employers in states with overly restrictive marijuana testing laws will continue to grapple with balancing the risk of an employment claim against the risk of workplace injuries due to drug use.
Practical Steps
To prepare for this evolving regulatory and legal environment, employers should consider:
- Review and update drug testing policies to ensure they address marijuana impairment.
- Reconsider policies for safety-sensitive positions, consistent with industry recommendations.
- Train supervisors and human resources staff on recognizing and responding to impairment and handling accommodation requests.
- Consult legal counsel regarding ADA risks and potential state-law claims tied to medical marijuana use.
- Communicate clearly with employees about company expectations and the continued prohibition of use and impairment at work.
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