December 18, 2025, President Trump issued an Administrative Order directing the Attorney General to complete the rulemaking process to reschedule marijuana from Schedule I to Schedule III under the federal Controlled Substances Act.  However, currently, marijuana is still a Schedule 1 drug until otherwise notified, and there are nuances that HR needs to be aware of.  

Once it is reclassified, how will it impact employers?

Based on findings from various agencies, the administration found that marijuana has a “currently accepted medical use” and is less likely for abuse than other Schedule 1 drugs.  The Administrative Order recognized that:

• Authorization of more than 30,000 licensed health care practitioners across 43 jurisdictions to recommend medical marijuana;
• Registration of more than 6 million patients using marijuana to treat at least 15 medical conditions; and
• Findings by the FDA of credible scientific support for the use of marijuana in treating pain, anorexia related to medical conditions, and chemotherapy-induced nausea and vomiting.

This recognition has impact on employers in that courts and agencies will review employer policies and enforcement based on the new environment concerning marijuana.  It may become a game changer in certain cases.

For example, employees can argue with more authority that the use of off-duty, state-law-compliant medical marijuana should be treated differently from use of Schedule I substances. Zero tolerance policies may go to the wayside.  It is still difficult to prove that the off-duty use of marijuana affected the performance of the employee, but employers may become handcuffed trying to prove otherwise.

From an ADA perspective, the Administrative Order emphasizes chronic pain, chemotherapy side effects, and other serious medical conditions for which marijuana is used therapeutically. Therefore, even with safety sensitive positions, employees may argue and win that employers are following illegal reasoning not to consider accommodations related to the use of medical marijuana in light of federal findings recognizing its medical utility.

Further, the Administrative Order recognizes that there is widespread CBD use and acknowledges serious regulatory gaps, including inaccurate labeling and varying concentrations of THC.  In this scenario:

• Employees may test positive for THC while using ostensibly lawful CBD products;
• Full-spectrum CBD products may fall back under the Controlled Substances Act once statutory THC thresholds change; and
• Inconsistent product regulation increases the risk of unintentional policy violations by employees.

Employers may have difficulty responding.  Therefore, Constangy, a leading management-side law firm, recommends that “[e]mployers should ensure that supervisors, Human Resources teams, and compliance personnel understand the distinction between hemp-derived products, marijuana, and THC exposure—and how company policies apply to each.” 

In addition, if the employer has multi-state operations, 40 jurisdictions have various laws covering medical marijuana.  State level protections may increase with the reclassification of marijuana.

Finally, the Administrative Order does the following:

• States that it creates no enforceable rights by any party against the United States and its departments and agencies (in other words, federal employees do not have a private right of action under the Order);
• States that Federal safety-sensitive regulations—such as U.S. Department of Transportation drug-testing rules—are unaffected; and
• States that employers retain authority to maintain drug-free workplace policies consistent with federal and state law.

In light of these developments, employers should take time to review their current policies, update them where appropriate, and confirm that testing protocols are clearly tied to legitimate job requirements and safety considerations. Managers and supervisors should also receive training on the policies, including practical guidance on recognizing potential impairment, even though that area can be particularly complex. In addition, organizations should reassess whether their approach to reasonable accommodations needs to evolve under the current legal and regulatory climate.

It is also important to recognize that many of these discussions rely on assumptions about marijuana potency from the 1970s, despite the fact that today’s products are significantly stronger, in some cases several times more potent. Until courts provide clearer standards that employers can rely on with confidence, organizations should work closely with legal counsel to thoughtfully manage and reduce potential risk exposure.

Source: Constangy Brooks Smith & Prophete LLP 12/29/25