Dive Brief:
- The U.S. Department of Health and Human Services announced that the drug testing panels for federal workplace programs will continue to include marijuana metabolites, according to a rule published Friday in the Federal Register.
- HHS’ announcement contained no revisions to the panels despite President Donald Trump’s December executive order directing the federal government to reschedule marijuana from Schedule I to Schedule III classification under the Controlled Substances Act “in the most expeditious manner” allowed by federal law.
- Last January, HHS did issue a rule that revised abbreviations used by panels for marijuana test results, “consistent with current scientific nomenclature.” But marijuana remains a Schedule I drug under federal law, which classifies it as a drug with no currently accepted medical use and a high potential for abuse.
Dive Insight:
Several years of increased medical and recreational marijuana use legalization at the state level have enhanced compliance concerns for employers. The trend included a wave of successful ballot initiatives in the 2020 and 2022 elections, and at least 24 states have legalized adult recreational use, according to the National Conference of State Legislatures.
Compliance is complicated by the varied protections afforded to marijuana users in different states, sources previously told HR Dive.
For instance, Colorado, which has legalized recreational use, still permits employers to make employment decisions based on drug test results for cannabis use. Illinois, meanwhile, prohibits employers from discharging, or taking other adverse employment actions against, employees who use lawful products like marijuana away from the employer’s premises during nonworking and non-call hours.
At the same time, policy shifts on worker use of marijuana also have been driven by employers. One notable example is Amazon, which announced in 2021 that it would remove marijuana from its drug testing program for all jobs save those regulated by the U.S. Department of Transportation.
Sources have generally advised HR departments to continue to maintain workplace drug use policies as most state legalization efforts still permit employers to prohibit on-the-job marijuana use as well as impairment.
Should the federal government remove marijuana from its list of Schedule I drugs, employers might see their obligations under federal laws change, such as those dealing with workers with disabilities under the Americans with Disabilities Act, attorneys with Littler Mendelson said in a December analysis. The attorneys also noted that even rescheduling marijuana as a Schedule III drug would mean it would still be classified as a controlled substance under federal law.
“Until then, employers of regulated employees should and must maintain their policies in accordance with those regulations,” according to Littler. “And, for non-regulated workers, protections for medical marijuana may be found in existing state law, but are not yet approved or required for any worker as a matter of federal law.”