With marijuana rescheduling still left unfulfilled months after President Donald Trump ordered the process to be completed, there are no plans to update federal workplace drug testing rules around cannabis, according to a new filing from the U.S. Department of Health and Human Services (HHS).
In a noticed published in the Federal Register on Friday, HHS and the Substance Abuse and Mental Health Services Administration (SAMHSA) advised that they’ve “made no revisions to the current drug testing panels for both urine and oral fluid and current required nomenclature” for labs and medical review officer reports.
Because marijuana remains a Schedule I drug under the Controlled Substances Act (CSA), drug testing standards for the substance are not changing for federal workers, at least for now. “The current authorized drug testing panels and required report nomenclature remain in effect,” the notice says.
The relevant rule is meant to identify the “analytes and cutoffs for federal agency workplace drug testing specimens” and lay out “the nomenclature (i.e., analyte names and abbreviations) that must be used to report federal workplace drug test results.” Statute dictates that HHS must periodically provide updates on the rule, even if it’s not being revised as in this case.
Because the list of drugs that the rules apply to are listed in either Schedule I or Schedule II, the policy for marijuana testing could theoretically change if its moved to Schedule III, as proposed by HHS under the Biden administration following a scientific review. Trump in December directed Attorney General Pam Bondi do expeditiously finalize the rescheduling rule, but there haven’t been any updates in the weeks since the executive order was signed.
DOT subsequently advised in December that all safety-sensitive workers must still comply with federal drug testing requirements, even after the president directed the attorney general to complete the cannabis rescheduling process.
Drug testing policy is just one issue that rescheduling could impact. Stakeholders and advocates are eagerly awaiting final action for other reasons, as the reform is also expected to help expand research opportunities and allow marijuana businesses to take federal tax deductions they’re barred from under an Internal Revenue Service (IRS) code known as 280E, for example.
To that end, IRS recently weighed in on a relevant U.S. Tax Court case involving state-licensed cannabis businesses, reiterating its position that the industry must still comply with 280E as rescheduling sits pending—and it does not intend to retroactively extend relief to the sector even if marijuana is ultimately moved to Schedule III.
Meanwhile, a new academic paper says that while marijuana rescheduling would represent a historic policy change with major implications for cannabis research and industry, it should be viewed as a “transitional” step that must be followed up with comprehensive reform to better align state and federal law while promoting equity.
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.336.0287 or Email: info@randisiandassociates.com or the website at Randisiandassociates.com
