The Evolution of Workplace Drug Testing: What Employers Need to Know for 2026

Quick Hits

• President Donald Trump has instructed the U.S. Department of Justice to reclassify marijuana, which could happen in 2026.
• In recent years, a growing number of states have legalized medical and recreational marijuana, provided job protections for medical and/or recreational marijuana use, and passed new restrictions on workplace marijuana testing.
• Aside from marijuana issues, employers continue to struggle with managing opioid abuse in their workforce and have begun to experience new challenges in dealing with substances such as fentanyl and ketamine.
• A new saliva drug test may make it easier for employers to conduct drug tests at the workplace.
• Disability accommodation questions continue to create difficult issues for employers to manage.

Reclassifying Marijuana

Forty states and Washington, D.C., have legalized marijuana for medical purposes. Twenty-four states and Washington, D.C., allow marijuana for recreational purposes. However, marijuana use and possession remain illegal at the federal level.

On December 18, 2025, President Trump signed an executive order directing the attorney general to reschedule marijuana from a Schedule I to a Schedule III drug under the federal Controlled Substances Act. If that happens, marijuana use and possession would continue to be illegal at the federal level, but the federal penalties for certain offenses may be reduced.

In addition, employees who have a disability may be able to obtain a reasonable accommodation under the Americans with Disabilities Act (ADA) for consuming cannabis because Schedule III drugs are recognized as having a currently accepted medical use. While medical marijuana cardholders have regularly had success in recent years asserting claims for disability discrimination under state anti-discrimination laws, individuals have had less success asserting claims under the federal ADA due to marijuana’s status as a Schedule I drug. This could change with federal rescheduling of marijuana.

Importantly, the illegality of marijuana under federal law does not provide a defense to state law claims for non-federally-regulated workers, regardless of what class marijuana is scheduled in. These state claims include lawsuits for violating employment protection provisions contained within state medical or recreational marijuana legalization laws, state disability discrimination laws, or state lawful off-duty conduct laws.

Opioids, Fentanyl, Ketamine

Employers are still dealing with opioid abuse issues, including the question of whether to utilize Narcan to prevent overdoses at the workplace. There are new challenges emerging, including the rise in employee use of fentanyl, ketamine, and other substances. The emergence of these new challenges is indicative of the reality that workplace drug and alcohol testing and related issues are never-ending.

DOT and Testing Standards

The standard workplace drug test checks for amphetamines, cocaine, marijuana, opioids, and PCP. The U.S. Department of Health and Human Services (HHS) revised its drug testing guidelines to include fentanyl and norfentanyl with enforcement beginning on July 7, 2025. That rule applies to federal employees in safety-sensitive, security-sensitive, and national security jobs. Likewise, the U.S. Department of Transportation (DOT) proposed adding fentanyl and norfentanyl to its drug testing panels, and a final rule is expected to take effect in early 2026. That rule would apply to private transportation employees in the trucking, aviation, rail, transit, pipeline, and maritime industries.

The DOT’s proposed rule seeks to align with an HHS regulation that established a protocol for drug testing with saliva, rather than urine. However, DOT-regulated employers cannot implement saliva testing until HHS certifies two laboratories to complete those tests. In the meantime, those employers will continue to rely on urine testing. Saliva testing can be easier for employers because it can happen quicky in the workplace under direct supervision without the need for a bathroom and privacy.

Multistate Testing Restrictions

State rules on drug and alcohol testing vary widely, making the situation complex for multistate employers. In some states, employers are prohibited from conducting a drug test before extending a conditional job offer. Some states ban or restrict random drug or alcohol testing but allow drug or alcohol testing for safety-sensitive jobs, when there’s reasonable suspicion of impairment, or after a workplace accident. Some states limit the circumstances under which employers can conduct post-accident or post-injury testing. Finally, some jurisdictions and states impose specific restrictions on marijuana testing.

Many states prohibit employers from disciplining or firing an employee for off-duty, legal medical and/or recreational marijuana use. While no state prohibits an employer from enacting policies curbing the use or possession of marijuana while on duty or when someone is impaired at work, drug tests are unable to measure impairment.

Disability Accommodations

An employee might ask for a reasonable accommodation to consume marijuana for a medical condition, such as chronic pain, nausea, muscle spasms, epilepsy, insomnia, anxiety, or post-traumatic stress disorder. Currently, the ADA does not require employers to accommodate “current illegal drug use,” which has lessened the burden on employers to provide a reasonable accommodation for medical marijuana use. However, this could change if marijuana is rescheduled. In addition, state disability discrimination laws may still come into play and create accommodation obligations. State disability discrimination laws may prohibit employers from discriminating against an employee who has a disability and a valid, state-issued medical marijuana card permitting the employee to use medical marijuana while off duty.

The differences in employment protections across states are vast and must be strictly followed, particularly as this area has become more litigious. Employers generally can discipline or fire an employee for being impaired by marijuana while on the job, although testing positive for marijuana on a drug test is not a proxy for impairment.

Next Steps

Employers may wish to take these steps to be prepared to properly handle drug and alcohol testing and related issues in 2026:

• Reviewing written drug and alcohol testing policies and any other process or procedure documents and consider whether updates are needed to comply with applicable state laws.
• Becoming familiar with the relevant state drug and alcohol testing laws, and the relevant state drug and alcohol testing laws.
• Considering whether the rescheduling of marijuana warrants an internal change to employer policies or practices with regards to marijuana testing.
• Considering whether to begin testing for substances, such as fentanyl or ketamine, that may not be included within standard panel drug tests.
• If using a third-party drug testing vendor, coordinating with the vendor to ensure compliance with any changes to state and federal laws and regulations. Employers may also want to evaluate whether the existing vendor is meeting expectations and performing well, or whether a change in vendors might be necessary.
• Avoiding asking questions about marijuana or prescription medication use during job interviews, as it could lead to a discrimination lawsuit or accommodation obligations.
• Carefully documenting the reasons for disciplining or firing an employee, such as violating the drug policy, violating the safety policy, or evidence of impairment at work, including slurred speech, poor motor coordination, or the odor of drugs.
• Considering engaging in an interactive process for disability accommodation if an employee is a medical marijuana cardholder. Also consider the nature of the employee’s job duties, the work environment, safety concerns, and any information provided by the employee’s doctor.
• Training supervisors to spot signs of intoxication in the workplace through effective reasonable suspicion training.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments and will provide updates on the Drug Testing, Leaves of Absence, and Trucking and Logistics blogs as new 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.

A new drug testing template and a new workplace marijuana guide are available through Ogletree Deakins now. Additional template packages are also available.

Michael Clarkson is a shareholder in Ogletree Deakins’ Boston office.

M. Tae Phillips is a shareholder in Ogletree Deakins’ Birmingham office.

Michael S. O’Malley is an associate in Ogletree Deakins’ Stamford 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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