Feds Considering Reclassification of Marijuana to Schedule III

The federal government appears to be moving forward with the necessary steps to reclassify marijuana, which would no longer make it a Schedule I drug under the Controlled Substance Act. However, if marijuana is reclassified as Schedule III, that would not mean recreational use is legalized at the federal level.

Xochitl Hinojosa, director of public affairs for the Department of Justice, said the attorney general earlier this week proposed the reclassification, according to the Associated Press.

The US Drug Enforcement Administration’s move to reclassify marijuana from Schedule I to Schedule III will have to be reviewed by the White House Office of Management and Budget before being entered into the Federal Register. After the OMB approves, the DEA will accept public comment once the proposal is published in the Federal Register.

Schedule I vs. Schedule III: What’s the Difference?

Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse, according to the DEA.

Examples of Schedule I drugs are:

• Heroin
• Lysergic acid diethylamide (LSD)
• Marijuana (cannabis)
• 3,4-methylenedioxymethamphetamine (ecstasy)
• Methaqualone
• Peyote

The DEA reports Schedule III drugs, substances, or chemicals have a moderate to low potential for physical and psychological dependence. The administration also notes that Schedule III drug abuse potential is less than Schedule I and Schedule II drugs but more than Schedule IV.

Examples of Schedule III drugs are:

• Products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine)
• Ketamine
• Anabolic steroids
• Testosterone

Being classified as Schedule III means marijuana has been determined to have some medical benefits.

Marijuana Reclassification Under White House Direction

The change has its roots in the White House. In October 2022, President Joe Biden announced the pardon of all federal offenses of simple possession of marijuana, urged state governors to do the same with state-level marijuana offenses, and asked the Secretary of Health and Human Services and the attorney general to initiate the administrative process to expeditiously review how marijuana is scheduled under federal law.

“Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances.  This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic,” Biden said in the Oct. 6, 2022, press briefing. “Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and underage sales should stay in place.”

The Department of Health & Human Services finished its part of the review last year and sent a letter to the Drug Enforcement Administration, recommending that marijuana be downgraded to a Schedule III drug, reported NPR.

Back When FDA Opposed Reclassification

The move to reclassify marijuana is a shift from the Federal Drug Administration’s stance in 2015, when Biden was the vice president. Back then, a similar change had been brewing since two governors had requested the reclassification of marijuana in 2011.

However, in a June 2015 letter, Karen B. DeSalvo, acting assistant secretary for health, wrote to the DEA’s acting director and recommended that marijuana continue to be classified as a Schedule I drug. She also attached two documents. Those were prepared by the FDA’s Controlled Substances Staff and detailed why the FDA was against changing the marijuana classification.

One of the chief concerns in those documents was the potential for addiction to marijuana.

So, How Will This Potential Reclassification of Marijuana Impact Fleets & Employers?

Work truck fleets typically are staffed by non-CDL drivers, which means those drivers do not fall under the Department of Transportation and Federal Motor Carrier Safety regulations that mandate a person is not physically qualified to drive a commercial vehicle if he or she uses, possesses, or is under the influence of any Schedule I controlled substances while working.

Department of Transportation drug tests now require lab testing for marijuana, cocaine, opiates, amphetamines, methamphetamines, and phencyclidine. So, if marijuana is reclassified to Schedule III, there may need to be some adjustments DOT drug policies and related testing.

The true challenge for work truck fleets is most likely not navigating a reclassification of marijuana but instead navigating state laws in places with legalized recreational marijuana use.

What forms of employee drug testing for marijuana, per individual state laws, are allowed or disallowed? Do some state laws open recreational use to all employees in a state, or are there some vocations where workers still must be marijuana-free?

Example: California Workers Who Use Marijuana Are Protected

Under a new California law, AB 2188, workers are protected against employer discipline or termination for using marijuana. The law was effective Jan. 1.

The California law makes it “Unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace, except for pre-employment drug screening, as specified, or upon an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

But the law does not provide the same protection from disciplinary actions by an employer evenly, since it does not apply to some occupations, including:

• Employees working in the construction and building industries
• Employees hired for positions that require federal background and clearance checks

So, if you own a construction company and have a fleet of work trucks, do those workers fall within the classification of construction and building industries? What if you own a pest control company and send workers to a jobsite?

If so, they can be disciplined by the employer for recreational marijuana use if they fail a drug test. But, does construction and building job classification only apply to manual laborers on a site, or to the broader scope of workers who deliver materials to the site?

What about a supervisor for a construction company who visits a site? In California, can his or her company discipline over drug use since construction trades are not protected under the law?

Likely, the courts in California will have to iron out such fine details.

But remember, each state that has legalized marijuana may have different labor laws, so if your company spans multiple states you should educate yourself on state specifics regarding recreational marijuana use, drug screening and testing, and disciplinary actions.

One thing to note about California law is it does not permit employees to possess, be impaired by, or use marijuana on the job. Also, it does not restrict the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, if so desired.

CDL Drivers: ATRI’s Research on Marijuana & Trucking

The American Transportation Research Institute, in June 2023, released Impacts of Marijuana Legalization on the Trucking Industry. The report was a deep dive into the topic and saw two possible federal pathways regarding marijuana. One was to maintain it as a Schedule I drug.

The report said, “Should the federal government maintain current marijuana laws, the trucking industry will continue to have thousands of drivers annually placed in prohibited status and will lose many others to occupations that do not test for marijuana use.”

The other option, which seems to be the current path, would be the removal of marijuana from Schedule I. ATRI found that this route would “likely ease pressure on the industry’s driver shortage.”

ATRI suggested to make sure the trucking industry remains safe and unimpaired, several actions must be taken before any legalization of marijuana at the federal level. The steps recommended by ATRI are:

• Develop a nationally recognized marijuana impairment test and impairment standards.
• Protect a carrier’s choice to screen for marijuana.
• Develop greater knowledge of marijuana’s impacts on highway safety through federal research and data collection.