Workplace Strategies Watercooler 2026: What the DOJ’s Medical Marijuana Reclassification Means for Employers

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Phillip Russell: Welcome to Workplace Strategies 2026 in Austin, Texas. I’m here with my friends, Tae Phillips and Christina Mallatt. They are co-chairs of our Drug Testing Practice Group. And we are here today because this morning we did an early bird session at Workplace Strategies called From Schedule I to Schedule III: What the DOJ’s Medical Marijuana Reclassification Means for Employers. I’m Phillip Russell from the Tampa office, and as I said, I’m joined by my friends, Christina and Tae. We’re going to talk on this podcast a little bit about what our breakout, our early bird session was this morning, about what that means and what employers should be considering or should be thinking about. So, Christina, let’s start with you. We all begin with this thing called the Controlled Substances Act and this Schedule I versus Schedule III. What does that mean?

Christina Mallatt: Yeah, thanks Phillip. So just to provide some brief context before we dive into the meat of this subject. When we talk about reclassifying or rescheduling a drug, we’re talking about the Controlled Substances Act or the CSA. And it is the law that governs federal drug policy in the U.S., and it sets various substances out onto schedules, schedules one through five based on medical use, safety, and abuse risk. And so, Schedule V drugs, for example, would be things that you could buy over the counter at a pharmacy like cough medicines, Robitussin, things like that. And then you move upwards through the schedule. Schedule III is where you’d find substances that do have some medical use that’s approved and acknowledged. Things like ketamine, anabolic steroids, things of that nature. Schedule I is where you’re going to find your drugs that have the highest potential for abuse and no currently accepted medical use. And that’s where you’re going to find things like heroin, ecstasy, and until recently, marijuana. And so that is the CSA in a nutshell.

Phillip Russell: All right. And so, Tae, what happened recently? Or I guess why don’t you take us through this whole rescheduling process? I know we started back in 2024. There was an effort under the Biden administration, and then bring us around to where we are now with what this change might mean.

Tae Phillips: Yeah.

Phillip Russell: Clear the smoke on it for us a little bit. Yeah, sorry.

Tae Phillips: That’s point number one. Number one.

Phillip Russell: I had to go there.

Tae Phillips: Well, it’s been a little bit of a long, strange trip, right?

Phillip Russell: There you go. Pum, pum, param, pum.

Tae Phillips: So, I’m not saying anything that’s probably shocking to anyone listening to this. We have politics in America, right? So, things tend to swing with the wind as presidents come and go. And so, this is actually, joking aside, been really a two and a half-ish year process. So, on the back end of President Biden’s administration, April of 2024, President Biden had actually announced, and his administration announced, that there were going to be some efforts to reschedule marijuana from Schedule I to Schedule III. Now that died on the vine as the administrations turned over and we didn’t really hear anything about that for a while. So fast forward to December of 2025, President Trump’s been in office for about a year. He entered an executive order that directed the DOJ to reschedule marijuana from Schedule I to Schedule III. All right, so just pausing for a second.

We had President Biden in April of ’24, nothing happens for a year and a half-ish. We have an executive order in December of ’25, and then it just sat again for a few months. If y’all listen to our podcast regularly, we had actually recorded a podcast about that executive order earlier this year. And then frankly, just out of nowhere, on April the 22nd of 2026, so at this point, about three weeks ago, the DOJ just very swiftly and out of left field rescheduled medical marijuana from Schedule I to Schedule III. Now, obviously they missed a prime opportunity to do that on April the 20th, but kidding aside, it did somewhat come out of nowhere. And we can certainly talk about what the DOJ’s order said and what it didn’t say, but this has been about a two-year process, and interestingly enough, one of the few things that the administrations have agreed upon.

Phillip Russell: Well, and let’s talk about that because you mentioned politics. I thought one of the most interesting things you did this morning, Christina, was the maps where we showed the legalization of marijuana at the state level, not federal, but at state level, and how that’s evolved in your maps from 2019 to 2022 until now. And at first, loosely, the 2019 map loosely would have matched up with some red and blue states politically.

Christina Mallatt: That’s correct. That’s a very accurate assessment of how things looked six or seven years ago. So, pre-COVID, 2019-ish, there were at that time, I think approximately 32, 33 states that had legal medical marijuana, and just 11, I believe at that time that had legal recreational marijuana. And particularly the recreational marijuana states are the states that you would expect to see those laws from your more liberal, left-leaning states, California, Colorado, amongst others. But as time went on, more and more states passed both medical and recreational marijuana. And by the time we get to today, as we currently stand, we have about 40 states with legal medical marijuana and about 25, I think, just shy of 25 with legal recreational marijuana. And those no longer really align necessarily with political ideologies. It’s become much more accepted and part of the cultural zeitgeist really, so to speak, in terms of it being part of American culture these days.

Phillip Russell: So, Tae, that makes it pretty difficult for a multi-state employer in terms of trying to design what their marijuana or drug testing policies look like, doesn’t it?

Tae Phillips: Yeah. I mean, it’s interesting because I think that you’ve got your Mount Rushmore of your multistate employment topics. And we’ve always thought that things like paid sick leave or wage and hour issues, those are the ones that are front and center when we talk about these multi-state issues, and that’s certainly true, but what I would call the bonus member of the Mount Rushmore has always been your state marijuana laws, your state medical marijuana legalization laws, your state recreational marijuana legalization laws. And then all of the other state specific laws that have always been triggered with positive marijuana tests, things like disability laws, things like off-duty conduct laws. And so it’s something I think that has always been very challenging for our multi-state clients, and one that, I was telling the audience this morning, one that also falls into the bucket of a little bit personally controversial to some.

I think that some people based upon personal opinions, religious beliefs, political opinions, whatever the case may be, they have wildly different views on marijuana than others. And so, it falls into the bucket of a challenging multi-state topic while also falling into the bucket of one that has a little bit of personal opinion undertones to it as well.

Phillip Russell: Well, and the differences. Some of the key differences that we discussed this morning in the session is that some states might have an affirmative obligation for an accommodation for medical marijuana or they may have private rights of action. Other states, and I’ll speak to my home state of Florida, we have the opposite. We have a statute that says, yes, medical marijuana is legal. You can get a card, but you have no private right of action, and the employer has no duty to accommodate. So, it really is difficult to have a one size fits all policy in multi-state employers.

Tae Phillips: That’s right. That’s right, because it is just so different. And a client was telling me one time, she said, “All of our risk,” and she was not just talking about marijuana laws obviously, she said, “All of our risks are not grounded in our desire not to comply with the laws, right? Our risks are not grounded in an intent to be discriminatory or unfair or whatever. It’s grounded in the ignorance of I don’t know what’s happening in all these different states.” And so, it just is so challenging because these laws change, these laws are different, these laws are interpreted differently. And so, it’s just very challenging from a multi-state standpoint.

Phillip Russell: Well, and my primary practice area is workplace safety. And of course, that’s an issue that is very important to the work that I do with clients, and I know the work you do with clients. And so, safety being front and center, the big obstacle with marijuana is we still to this day, despite many efforts, we do not have a test that will measure impairment. And unlike with alcohol where we know what impairment comes with a 0.08 blood alcohol content, we don’t have the same thing for marijuana, right Christina?

Christina Mallatt: That’s absolutely right. And I think that is important to point that out, Phillip, because no matter how opinions have changed over the last several years and how much more accepted marijuana use has become, the fact remains that it is impairing. It’s an impairing substance, full stop. There’s no arguing about that.

And you are right that there is no current test that can measure impairment. And the tests that are available right now are tests that measure basically levels of THC, whether it’s urine, hair, oral fluid, what have you, but that is what the test metrics are. And so that makes it incredibly challenging to police it in the workplace because you may have an employee that comes to you that has tested positive and they tell you, and they may very well be telling the truth, “I wasn’t impaired at work. I smoked a joint or whatever with some buddies over the weekend at a concert, but I’ve never come to work impaired.” And what if that employee or what if you’re in a state where there’s an off duty conduct law that comes into play? So, there are all sorts of challenges that come into play with this topic.

Phillip Russell: Yeah. There’s your billion-dollar business right there.

Christina Mallatt: Exactly.

Phillip Russell: Yeah. Go figure out a way to measure that impairment and give employers something to work with. I can imagine today that our clients and really all employers out there may run into a misperception issue, and that is that when the news has broken, and it did break, and there was a hearing, I understand, coming up at the end of June about what to do with this rescheduling. But our friends in HR and friends in in-house legal all the time are having to deal with these misperceptions. And I can imagine a situation where an employee might come forth and say, “Well, you can’t stop me anymore because it’s legal.”

Tae Phillips: Yeah, that’s right. I mean, that’s been a misperception for the last 10 years, and much less now that this has been gaining some attention. So, I think it’s important to recognize what did the order say, the DOJ’s order say, and what did it not say. And this is where I, at least in Tae Phillips’s opinion, it’s a little bit of a distinction without a difference. But basically, what the DOJ did is they moved, and I’m using air quotes, I know y’all can’t see me, but medical marijuana. So, state approved medical marijuana from Schedule I to Schedule III. It also moved, air quotes, FDA-approved products that contain THC, marijuana, metabolites, et cetera, et cetera, from Schedule I to Schedule III. So those are the two things that got moved from one to three. Recreational marijuana or sometimes people call that non-medical marijuana, street marijuana, that remains on Schedule I.

So, in other words, just to summarize, medical marijuana moves from I to III, FDA-approved products move from I to III, and then recreational marijuana stays on Schedule I. And so, I think the difficulty with that is it’s all the same stuff, right? So, THC, that’s the active impairing ingredient in, gosh, I sound like a chef, but the active impairing ingredient in marijuana. So, the THC that’s in “medical marijuana” is no different than the THC that is in “recreational marijuana,” which theoretically would not be any different than the “THC” in FDA-approved products. It’s all the same stuff.

It’s like think about baking a cake, which I think some people do bake cakes with marijuana, but think about baking a cake, right? The salt is the same regardless of how the cake is baked. Lots of puns in this one, but I think that’s the difficulty is that even though, and going back to your question, I think people may see this and they may think that, oh, pot is completely legal now. It’s not in general, and then certainly, air quotes, recreational marijuana is not. So, it’s a little bit of a confusing order.

Phillip Russell: Well, let’s talk about the distinction though between Schedule I and Schedule III because that really then opens the door for us to think ahead and think, well, what is the impact that we could see on employers? So that distinction, Christina, is that Schedule I has no medical value. Schedule III might have some medical value.

Christina Mallatt: Correct. Yes. And that segues into, well, what kind of issues do we think we’re going to see as a result of this rescheduling? And I’d say the number one impact is likely going to be on disability discrimination claims. With regard to marijuana, typically, if someone were to file a lawsuit alleging some sort of disability discrimination claim, probably nine times out of 10, it would have been under a state disability discrimination law because marijuana laws are a creature of state law and not federal. And so with this rescheduling though, now moving medical from Schedule I to Schedule III, it’s not legal again, but it’s viewed as having a currently accepted medical use, it’s highly more likely that we’re going to see more plaintiff’s attorneys filing claims under the federal ADA, and that’s going to open up a whole new wave of lawsuits most likely as a result of the rescheduling.

Phillip Russell: In 1990 when the ADA was passed, it was a bit of a change in employment laws. Most of them up to that time was thou shalt not do something. The ADA was, well, thou shalt do something, which is to provide a reasonable accommodation for disabilities. Tae, how do you see that playing out? I mean, what Christina described, do you agree with that assessment?

Tae Phillips: I do. I do. And so, myself and one of our colleagues, Mike Clarkson, we were involved in the very first big disability-focused medical marijuana case, right? It was a case that started in 2015, ended in 2017, and it was the first time that any court had really recognized the ability for a medical marijuana card holder to bring a disability discrimination claim. And so, over the past 10 or so years, that has been easily the most frequently filed claim that we see in these medical marijuana-based cases are these disability discrimination claims. And without overthinking it, everybody listening just take what I say at face value. If you’re a medical card holder, you are disabled, at least for purposes of being able to bring a disability claim. And so, for the last 10 or so years, you’ve had all of these claims arising out of state courts, arising out of state disability discrimination laws for disability discrimination filed by medical marijuana card holders.

And for the most part, they have almost exclusively been claims arising under state disability discrimination laws. Now this has not been 10 times out of 10, but most of the time, if folks have tried to bring claims under the federal ADA, most of the time these federal court judges have knocked those claims out under the principle of you never have to accommodate current illegal drug use under the ADA. So that’s a well-known principle that you never have to accommodate someone’s current illegal drug use for purposes of the ADA. So, I think that with this move from Schedule I to Schedule III, I think that you’re going to see, to Christina’s point, a rise in your ADA claims. So in other words, we’ve already had all of these state disability claims that have arisen over the past 10 or 12 years, but there have been a few states that have been immune from that, for lack of a better word, because they don’t have a state disability discrimination law.
And so I think that if you’re listening to this and you’re in a state that only has the federal ADA, I think these are claims that are about to start landing on your doorstep, right? Because I think that the ADA claims are now going to be more palpable, more viable because it’s not on Schedule I anymore. And then even if you’re in a state that does have a state disability law, now you add another potential claim, right? Not only a state disability discrimination claim, but also perhaps a federal ADA claim. And so Phil, to your point, the shall not and the thou shalt, if the federal ADA says, “Thou shalt,” and now we’ve got some federal ADA exposure with medical card holders, I think there could be a greater likelihood of accommodation-based claims for medical card holders, discrimination claims for medical card holders, disciplinary claims, all under the ADA.

Phillip Russell: Well, my home state is the example we discussed this morning. We have a law that provides for medical marijuana, not recreational, not yet, but the law doesn’t create a private right of action, does not require accommodations. But now, I certainly expect the plaintiff’s bar is going to take a fresh look at this. If marijuana moves, medical marijuana moves from Schedule I to Schedule III, now that opens the door for it not being under that current illegal drug use under the ADA. So certainly, would expect in states that are similar to Florida in that approach are going to be the ones where you might see the biggest uptick. If you’re in a state where you already have the obligation and you already have the state statute, why go to federal court? You’ll stay where you’re at.

Tae Phillips: Yeah, I think that’s probably right. I’m not an expert by any stretch of the imagination on states that only have the availability of federal ADA claims versus state disability laws, but I think that there’s certainly going to be states where there’s probably a greater desire to be more zero tolerant towards medical marijuana use, and now you’ve got this statute that has historically been very employer-friendly on this type of topic, the ADA, that may now become fair game.

Phillip Russell: Christina, what might employers want to consider right now by way of this news or this coming… When we see where the hockey puck may be going on these claims, what should they be considering or thinking about right now?

Christina Mallatt: I think revisiting drug testing policies, of course, I mean, that’s an obvious answer, but not only the drug testing language, but also disability accommodation language in employee handbooks and making sure that the reasonable accommodation process is fleshed out. I think that should probably be one of the priorities to start with.

Phillip Russell: Okay. So that was the accommodation piece we talked about this morning and how maybe there might be an increase in ADA claims with this move. Let’s talk about DOT. So, the Department of Transportation has a drug testing rule that requires drug testing for drivers with certain vehicles, I know there’s certain requirements and coverages, but this move from Schedule I to Schedule III, what does it mean for DOT drug testing?

Christina Mallatt: So, DOT regs, under the regs as they currently exist anyway, drivers can’t drive if they test positive for a Schedule I or a Schedule II substance, but now with this rescheduling, with medical and FDA-regulated marijuana moving to Schedule III, that takes out that approach or angle, and it’s really going to shift that. There’s nothing that’s mandating, that has mandated the DOT to immediately take action or do anything in response to the rescheduling, but clearly there’s a conflict now, and so it’s expected that probably sooner rather than later the DOT is going to have to issue some guidance or some new regulations that addresses that medical marijuana rescheduling component.

Phillip Russell: Tae, that seems to be a bit of a gap there. So, we might have this rescheduling going on now and I know more details are forthcoming after the hearing late at the end of June, but it seems like there is going to need to be at least some word from the Department of Transportation about this drug testing, otherwise there might be some concern that there might be drivers out there that might have tested positive.

Tae Phillips: Yeah, that’s right. I mean, I think that this is something where there likely will be some changes and some rulemaking changes with regards to substances that can be tested for under the DOT regs. I think the Department of Health and Human Services would be involved as well. And so I think that this is something that I know a lot of our DOT regulated clients have been concerned about, but I think it’s something that is likely going to pan out in a way where marijuana continues to be a substance that DOT regulated employers can test for and that will probably remain as the status quo as far as the DOT. And I think Phillip, you have some inside information from the Secretary of Transportation point of view, right?

Phillip Russell: Well, nothing official, but certainly some suggestions that the DOT knows that they need to put attention to it. So, I think that’s a stay tuned as always on developments in that area and we’ll see what happens. If I look at this big picture, essentially what the government has told us with this rescheduling from the Department of Justice is that there’s some federal government recognition that there might be some medical benefits to marijuana and the law needs to shift. Is that a good summary?

Christina Mallatt: I think that’s a great summary. And again, just to capture the big picture, like you said, I mean, things have changed. Public perception, public opinions have changed dramatically over the last 10, 15, 20, 25 years when it comes to marijuana. And so, this rescheduling process really has been probably the most seismic change to federal drug policy in the last several decades. It’s a big deal.

Phillip Russell: Tae, any closing comments?

Tae Phillips: No, other than I would just tell all of our listeners to stay tuned, right? I mean, like I said a few minutes ago, this came somewhat out of left field and obviously we now have a firm date that we’re supposed to have a hearing in late June. So, I would continue to monitor those developments. We’ll certainly stay on top of those developments as well, but we’re in a little bit of a holding pattern, but again, I think the two main takeaways of the things that we talked about, ADA-related issues and DOT regulation-type issues.

Phillip Russell: All right, quick shameless plug here. What do you do in the practice group? The practice group that you guys coach here, I know I butchered the name, but it’s the…so first of all, correct me on the name, and then just share with our listeners what you do in the practice group.

Christina Mallatt: Sure. So, it is the Drug Testing Practice Group, not a real fancy name or anything, not super exciting. But hey, it’s more fun than talking about a lot of other employment law issues. We get to talk about drug testing and marijuana. So, we do everything from reviewing and crafting drug testing policies for employers. We are constantly offering advice and counsel on workplace drug testing and marijuana issues as they arise in real time. That’s something we do every day. Occasionally, when litigation matters do arise, which isn’t quite as frequently as the other things we do, but we do handle litigation in this space as well.

Phillip Russell: Well, folks, go to ogletree.com, check out those resources from our leaders here in that practice group. They certainly are great. And my final shameless plug is for Workplace Strategies 2027. We will be in Chicago, so look forward to seeing you there if we didn’t see you here. Tae, Christina, thank you both very much.

Tae Phillips: Thank you.

Christina Mallatt: Thank you.

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