Quick Hits
- The DEA’s chief administrative law judge stayed marijuana rescheduling proceedings to consider adding a new GAO drug scheduling report to the hearing record and permit supplemental briefings concerning rescheduling all marijuana products, not just those approved by the FDA.
- Federal agencies must respond by October 13, 2026. After that, the judge will decide whether to admit the GAO report.
- Forty states and Washington, D.C., have legalized medical marijuana, and twenty-four states and Washington, D.C., have legalized recreational marijuana for adults.
Under the Controlled Substances Act (CSA), the federal government classifies drugs into five schedules based on accepted medical uses, potential for abuse, and potential for addiction. Schedule I drugs are deemed to have no accepted medical use and a high potential for abuse. This includes LSD, ecstasy, and heroin. Schedule III drugs are deemed to have an accepted medical use and moderate to low potential for physical and psychological dependence. This includes some pain medications, ketamine, and anabolic steroids.
The U.S. Food and Drug Administration (FDA) provides scientific and medical analyses that inform federal drug scheduling decisions, and the DEA makes the final classification decisions.
Federal Actions
On December 18, 2025, President Donald Trump signed an executive order directing the attorney general to reschedule marijuana from a Schedule I to a Schedule III drug. Rescheduling marijuana would not legalize it for recreational or medicinal use, but it would loosen restrictions on research of the drug as a potential treatment for certain medical conditions, such as anxiety, insomnia, post-traumatic stress disorder, chronic pain, and nausea from chemotherapy.
On April 28, 2026, the DEA published a final rule to place “drug products containing marijuana that have been approved by the FDA” and “marijuana subject to a state medical marijuana license” in Schedule III. That final rule took effect immediately.
In June and July 2026, the DEA Office of Administrative Law Judges held hearings on whether to move all marijuana products, including those for recreational use, to Schedule III, and whether to leave “medical marijuana” and “FDA-approved” marijuana on Schedule III.
GAO Report
The GAO report noted that the FDA lacked formal policies and procedures specifying how its staff should evaluate drugs and develop scheduling recommendations.
The report provides three recommendations:
- The administrator of the DEA should develop policies and procedures that identify DEA’s roles, responsibilities, and protocols for evaluating and scheduling substances.
- The commissioner of the FDA should develop policies and procedures that staff are to follow when completing evaluations and developing scheduling recommendations, including the criteria for determining a substance’s potential for abuse relative to other substances.
- The commissioner of the FDA and the director of the National Institutes of Health (NIH) should update their memorandum of understanding concerning developing drug scheduling recommendations.
GAO did not recommend against rescheduling marijuana or conclude that the FDA’s marijuana evaluation was flawed.
Next Steps
The administrative law judge will issue an opinion, followed by an opportunity for the parties to file exceptions and a review by the DEA administrator. After that, the DEA could publish a proposed rule with a comment period before a final rule is published. Certain parties could potentially challenge the final rule in federal court.
Employers may wish to review their policies and practices to ensure compliance with local and state laws regarding workplace drug testing and disability accommodations for employees who are medical marijuana cardholders. The state laws vary widely. Employers are still legally permitted to maintain a drug-free workplace and fire or discipline a worker for consuming cannabis or being intoxicated at the workplace.
Employers may want to monitor any regulatory developments and guidance from the U.S. Department of Transportation (DOT), the DEA, and the U.S. Department of Health and Human Services (HHS). If marijuana is rescheduled, potentially the biggest change for employers could be in the transportation industry.
Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments and will post updates on the Drug Testing, Healthcare, and Trucking and Logistics blogs as additional information becomes available.
This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.
M. Tae Phillips is a shareholder in Ogletree Deakins’ Birmingham office and co-chair of the Drug Testing Practice Group.
Michael S. O’Malley is an associate in Ogletree Deakins’ Stamford office.
Jennifer L. Pacicco is an associate in Ogletree Deakins’ Philadelphia office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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