President Donald Trump on December 18 signed an executive order to force the administration to move forward in reclassifying marijuana as a less-dangerous drug. However, that order does not legalize its use at the federal level, and what effect the move may have on commercial driver drug testing is unclear.
President Donald Trump signed an executive order commanding the DEA to move forward in reclassifying marijuana as a less-dangerous drug. However, that order does not legalize its use at the federal level. What effect the move may have on commercial driver drug testing is unclear, but for now, the DOT emphasizes that nothing has changed. Yet.
The December 18 EO instructs the DEA to take steps to move marijuana from a Schedule 1 drug (a category that also includes heroin) to Schedule 3, a category that includes medications such as ketamine and testosterone.
Schedule 3 drugs are available by prescription. Schedule I drugs are defined as substances with no currently accepted medical use and a high potential for abuse.
The Thinking Behind Trump's Marijuana Mandate
The move appears to be aimed at making it easier to conduct research into the potential medical benefits of marijuana. In fact, the name of the executive order is “Increasing Medical Marijuana and Cannabidiol Research.”
The order explains that the Food and Drug Administration in 2023 found scientific support for marijuana medical uses such as chronic pain, and nausea and vomiting caused by chemotherapy. Forty States plus the District of Columbia have state- or locally-sanctioned, regulated medical marijuana programs.
“Yet decades of Federal drug control policy have neglected marijuana’s medical uses,” the executive order explained. “That oversight has limited the ability of scientists and manufacturers to complete the necessary research on safety and efficacy to inform doctors and patients.”
The executive order directs the Attorney General (the DEA is part of the Justice Department) to “take all necessary steps to complete the rulemaking process related to rescheduling marijuana to Schedule III of the CSA in the most expeditious manner in accordance with Federal law.”
Revisiting a 55-year-old Law
The effort to reclassify marijuana has been under way for some time, but it’s been mired in the regulatory process.
1970: Marijuana is classified as a Schedule 1 drug under the Controlled Substances Act.
2016: Drug Enforcement Agency denies two petitions to reschedule marijuana.
2022: President Biden asked the attorney general and the Department of Health and Human Services to launch a scientific review of how marijuana is scheduled under federal law.
2023: The Department of Health and Human Services recommends to the Drug Enforcement Agency that marijuana be controlled under Schedule III of the CSA.
May 2024: The DEA’s Notice of Proposed Rulemaking kicks off a formal rulemaking process to consider moving marijuana from a Schedule I to a Schedule III drug under the Controlled Substances Act.
June 2024: Transportation Secretary Pete Buttigieg testifies before Congress that his agency believes the DEA proposal to reschedule marijuana will not directly affect the trucking industry’s ability to screen drivers and other safety-sensitive workers for marijuana.
What About Commercial Drivers?
Current regulations state that drivers shall not report for duty or be on duty “when the driver uses any drug or substance identified in Schedule I,” or when the driver uses any non-Schedule I drug that is listed in other schedules without appropriate medical instructions.
As we reported in 2024, exactly how recategorizing marijuana as a Class III drug would affect the DOT’s drug-testing regulations for safety-sensitive jobs such as truck driving isn’t clear.
Marijuana would still be illegal in multiple states. The change in classification would not automatically change state laws. Most states, even those with legal medical marijuana, would need to make changes to align with Schedule III restrictions.
Changing the drug-testing regulations would require additional rulemakings from both the the Department of Health and Human Services and the Department of Transportation.
There is no current standard roadside test for cannabis impairment, which could be a hurdle.
Trucking companies could still have higher standards.
As trucking safety and compliance expert Brandon Wiseman explained on Trucksafe.com, "The most significant issue raised by marijuana rescheduling is not whether truck drivers should be allowed to use marijuana. Federal law still prohibits marijuana use by interstate commercial drivers, regardless of state legalization or medical marijuana cards.
"The real issue is whether DOT will continue to have clear legal authority to require marijuana testing at all."
Wiseman also said marijuana rescheduling sends an unfortunate message to commercial drivers.
"Even now, many drivers believe marijuana is 'basically legal' because it is legal in their home state or recommended by a physician," Wiseman said. "Carriers and safety managers spend significant time explaining that state law does not override federal DOT regulations."
DOT Warns: No Changes Yet
The Department of Transportation's Office of Drug & Alcohol Policy and Compliance issued a notice on December 19 advising that for now, at least, there are no changes for the requirements for safety-sensitive employees.
1. Marijuana is still a Schedule I drug until any rescheduling is complete. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.
2. Until the rescheduling process is complete, the Department of Transportation’s drug testing process and regulations will not change. Transportation employees in safety-sensitive positions will still be subject to testing for marijuana. Furthermore, the Department’s guidance on medical and recreational marijuana and CBD are still in effect.
Laboratories, Medical Review Officers and Substance Abuse Professionals must continue to follow 49 CFR Part 40. There are no changes to their roles and responsibilities as they relate to marijuana.
Trucking Concerns About Reclassifying Marijuana
The American Trucking Associations issued a statement in response to President Trump’s December 18 executive order.
“While we do not hold a formal position on marijuana legalization or deregulation, we are concerned about the safety risks of rescheduling marijuana without explicit safeguards to preserve the testing authority and technical requirements that apply to DOT-regulated, safety-sensitive workers,” said American Trucking Associations' Vice President of Safety Policy Brenna Lyles.
“Motor carriers must retain reliable, enforceable tools to ensure they are not putting unqualified drivers behind the wheel.
“Without clear measures to ensure DOT’s drug- and alcohol-testing program retains — and is equipped to execute — marijuana testing authority, such a federal policy shift could have serious consequences for highway safety and the integrity of the national transportation network,” Lyles continued.
“This risk is exacerbated by the fact that there is currently no proven, widely accepted standard to determine marijuana impairment at roadside or before a driver begins operating a vehicle, making it far more difficult to prevent impaired driving.
"The stakes are not theoretical. Marijuana accounts for nearly 60% of all positive drug tests among commercial drivers subject to DOT testing requirements.”
ATA urged the Department of Transportation to work with HHS, DOJ, and Congress “to ensure that any federal policy shift preserves a holistic approach to safety, one that maintains the authority, tools, and technical capacity necessary to keep impaired and unqualified drivers off our roads.”
ATRI: Protections Needed for Safety-Sensitive Industries
The American Transportation Research Institute, in a 2023 report on the impact of marijuana legalization on trucking, said there were several protections that must be in place for employers in safety-sensitive industries in order to maintain safety while easing restrictions for marijuana use.
These include the development of a nationally recognized marijuana impairment test and impairment standards, as well as provisions that protect a carrier’s ability to screen employees for drug use.
CBD
In addition, the executive order calls for Congress to work with the White House to update the statutory definition of final hemp-derived cannabinoid products.to allow Americans to benefit from access to appropriate full-spectrum CBD products while preserving Congress’s intent to restrict the sale of products that pose serious health risks.
