The Equal Employment Opportunity Commission (EEOC) has sued an employer for the second time alleging that it violated the Americans with Disabilities Act (ADA) when it rescinded job offers based on applicants’ use of certain medications.

On Sept. 30, 2026, the EEOC filed suit alleging that Bollinger Shipyards discriminated against five qualified job applicants by withdrawing their job offers based on concerns over potential side effects of their prescription medication. Among other allegations, the EEOC claims the parent company’s HR director put in place a blanket ban on Suboxone use for “safety-sensitive” positions. Suboxone is used to treat opioid addiction to reduce opioid cravings and withdrawal symptoms.

The EEOC says each candidate completed a post-offer medical exam at a third-party clinic and disclosed lawfully prescribed medications. According to the agency, clinic personnel never checked whether the candidates actually took the medication during work hours, what side effects they experienced, or whether they could handle the safety-sensitive parts of the job. The EEOC also alleges that the examiners never marked any of these candidates as posing “a direct threat to themselves or others.”

This is the EEOC’s second lawsuit against the same employer for similar conduct in two years. The 2025 suit involved a pipe fitter who the EEOC alleged was put on indefinite leave and later fired after she disclosed she used a prescribed synthetic opioid. As one EEOC official put it, “Employers cannot rely solely on drug manufacturers’ listing of potential side effects as proof that an applicant cannot safely perform a job.”

Practical Takeaways for Employers

The EEOC is litigating these cases. The agency is showing how aggressively it is enforcing the law in this area. Because it rarely litigates an individual’s case directly, the decision to pursue these claims is especially noteworthy but not a new trend. The EEOC always has pursued litigation against employers for implementing blanket prohibitions on employees’ use of certain medications.

Avoid blanket assumptions. Do not assume that a person using Suboxone, methadone, or another prescribed opioid (including medication used to treat opioid use disorder) cannot safely do the job. Individuals in recovery who are not using illegal drugs are protected as disabled under the ADA and comparable state laws, and their treatment medications are treated like any other prescription. Social stigma associated with substance abuse and recovery may lead many employers to mistakenly assume that employees using certain prescribed medications to treat addiction cannot perform job duties safely.

Individualized assessments are required, not optional. Employers’ decisions must be based on the specific employee and the specific job’s duties, not on the medication’s label.

Interactive Process

When medication use raises a question about an employee’s ability to perform the job safely, employers should engage in the interactive process. This is a good-faith, individualized dialogue with the applicant or employee. The goal is to identify what limitations, if any, the person actually experiences, and whether a reasonable accommodation would let them perform the job’s essential functions. That inquiry should look at how the medication affects the job and how the job might be adjusted.

Direct Threat Analysis

An employer may exclude an individual on safety grounds only if the person poses a “direct threat.” That means posing a significant risk of substantial harm to the individual or to others that cannot be eliminated or reduced through reasonable accommodation. The determination must rest on an individualized assessment using objective medical evidence. Generalizations, stereotypes, and a manufacturer’s list of possible side effects are not enough.

Next Steps

Now is a good time to review your drug testing, post-offer medical exam, and hiring policies, including any instructions you give third-parties. Look closely at any rule that automatically disqualifies people based on lawful prescriptions. If you have questions, contact a Jackson Lewis attorney before taking adverse action based on medication use.

Beginning Dec. 13, 2026, covered employers in New York must stock opioid antagonists, such as naloxone (commonly known as Narcan), in their workplaces. Labor Law § 27-f applies broadly to private employers, including corporations, LLCs, and other business entities federally required to keep first aid supplies on hand. Labor Law § 27-f does not apply to government employers.

Recently, on Sept. 24, 2026, OSHA released guidance for employers on opioid overdose emergencies. OSHA recommends maintaining Narcan, monitoring inventory, and training employees to recognize and respond to overdoses. The guidance does not create new federal compliance obligations, but it provides a useful framework for New York employers preparing to comply with Labor Law § 27-f.

Because coverage under Labor Law § 27-f is tied to federal first aid requirements (29 CFR 1910.151(b)), employers should first consider whether their worksites are required to maintain first aid supplies. Accordingly, worksites that do not have an infirmary, clinic, or hospital used to treat all injured employees in “near proximity” must maintain first aid supplies. “Near proximity” is not defined. In practice, however, most employers are likely required to maintain first aid supplies under the federal standard and therefore likely will be subject to Labor Law § 27-f.

Proposed Rules

On Sept. 23, 2026, the New York Department of Labor (NYDOL) published proposed rules on key employer compliance obligations, including:

  1. Quantity and placement. Employers must maintain a “sufficient number” of opioid antagonists based on factors such as worksite size and layout, staffing levels, the nature of the work, whether high-risk populations access the site, and any history of on-site overdoses. No fixed quantity is required. Supplies must be stored in accessible locations, ideally near AEDs and first aid kits, and employees must be informed of their location.
  2. Training. Employers are encouraged to recruit employee volunteers for training and may train all employees. At a minimum, at least one trained employee must be present during business hours. Training must be consistent with materials made available by a New York health department and cover:
    1. Recognizing opioid overdose symptoms;
    2. Administrating an opioid antagonist;
    3. Steps to take before and after administration, including contacting emergency responders; and
    4. Good Samaritan protections under Public Health Law § 3000-a.
  3. Maintenance and inspection. Employers must regularly inspect opioid antagonist supplies and promptly replace and dispose of expired, used, missing, or compromised doses when they become aware, or should have become aware, of the need to do so. Employers also must ensure opioid antagonists are administered pursuant to manufacturer instructions or, if unavailable, guidance from designated New York health agencies.
  4. Shared workplaces. Employers sharing a worksite may satisfy the requirements jointly through a written compliance plan, which must be provided to the NYDOL commissioner upon request.
  5. Cost. Compliance costs are expected to be modest. Narcan is often available at low or no cost through public programs, and free training is available.

What Should Employers Do Now?

Covered employers should begin preparing by:

  1. Assessing whether their worksites are subject to OSHA’s first aid requirements;
  2. Assessing the quantity of opioid antagonists needed and where they should be located;
  3. Identifying employees for training and ensuring coverage during operating hours;
  4. Establishing inspection, replacement, and disposal procedures;
  5. Communicating supply locations to employees;
  6. Coordinating written joint compliance plans, where applicable; and
  7. Considering whether to submit comments on the proposed rules before the Nov. 22, 2026, deadline.

If you have questions about Labor Law § 27-f coverage, employee training, or implementation, Jackson Lewis attorneys are available to assist.

The Department of Transportation’s Office of Drug and Alcohol Policy and Compliance published answers on May 15, 2026, regarding the rescheduling of certain medical marijuana products to Schedule III of the Controlled Substance Act (CSA) by the Department of Justice (DOJ).

By Order dated April 22, 2026, the DOJ immediately placed all FDA-approved marijuana products and marijuana products regulated by a state medical marijuana license in Schedule III of the CSA. DOT regulations require that covered employers test for marijuana and make testing positive for marijuana disqualifying. Since medical marijuana products were placed in Schedule III, questions have arisen as to how medical marijuana should be addressed for DOT-regulated employees.

As stated on the ODAPC website:

QUESTION:

Recently, the Drug Enforcement Administration (DEA) issued an order (Order) that reclassified FDA-approved drug products derived from marijuana and marijuana products regulated by a State medical marijuana license from Schedule I to Schedule III drugs under the Controlled Substances Act (CSA). When reviewing a laboratory reported marijuana positive drug test result, can a Medical Review Officer (MRO) deem the test a “negative” if the employee alleges the positive resulted from consuming a State licensed marijuana product?

ANSWER:

  • No. Currently, there is no instance when the MRO could verify a laboratory-confirmed marijuana positive drug test result as “negative” when an employee claims the positive was caused by a State licensed marijuana product.
  • Even after rescheduling, State-dispensed marijuana does not constitute an FDA-approved drug. Without FDA approval for a controlled substance, it cannot be prescribed.
  • A “legitimate medical explanation” requires use of a legally prescribed controlled substance in compliance with Federal laws governing such a prescription. 49 CFR §§ 40.137(a); 40.141(b).
  • Although the MRO may be presented with documentation such as State-issued medical marijuana cards, physician recommendations or certifications, or dispensary records or receipts, these documents do not satisfy part 40 requirements for a “legitimate medical explanation.”
  • Marijuana use under State marijuana programs or other non-prescription sources do not qualify as a “legitimate medical explanation” under 49 CFR § 40.137(a). In addition, marijuana use is not compatible with safety-sensitive functions.

DOT-regulated employers should continue to test for marijuana in accordance with DOT drug and alcohol testing regulations. State-issued medical marijuana cards and licenses do not excuse positive marijuana drug test results. Please contact a Jackson Lewis attorney with any questions.

Significant revisions to the Maine Substance Use Testing Law, 26 Maine Rev. Stat. 681 et seq., will take effect on July 29, 2026. Maine House Bill 1425 (2025-2026).

New Types of Tests Permitted

Maine law currently permits pre-employment testing, “probable cause” testing, and random testing in certain circumstances. The revised law will permit pre-employment testing as well as:

  1.  Criteria-Based Testing. This refers to testing based on a set event, such as an employment anniversary or promotion. It includes client-required or site-specific testing based on criteria unrelated to substance use, such as when a client requires testing prior to work on a project or specific site.
  2. “Probable Cause” Testing will now be called “Reasonable Suspicion” Testing. Testing is permitted when an employer has reasonable suspicion to believe that, based on observable behaviors, the employee may be impaired. Reasonable Suspicion means specific and articulable facts that, taken together with rational inferences from those facts, reasonably support the belief that an employee may be under the influence of a substance, except that the existence of reasonable suspicion may not be based exclusively on any of the following:
    1. Information received from an anonymous informant;
    1. Information tending to indicate that an employee may have possessed or used a substance off duty, except when the employee is observed possessing or ingesting any substance either while on the employer’s premises or in the proximity of the employer’s premises during or immediately before the employer’s working hours; or
    1. A single work-related accident without the employee also exhibiting observable behavior indicating impairment at the time of the accident.
  3. One Unannounced Test After Returning to Work. If an employee receives a positive test result and returns to work after participating in a rehabilitation program, the employer may require one unannounced subsequent test between 90 days and one year after the date of the employee’s prior test. Maine law does not permit termination of an employee after a first-time positive test result; the employee must be provided an opportunity to participate in a rehabilitation program for up to 12 weeks (previously six months).

Additionally, the definition of random testing has been revised to mean “a neutral selection method by which all employees have an equal chance of being selected for substance use testing.”

The employer’s written policy must identify which positions, if any, will be subject to criteria-based testing or random testing. Approval of the employer’s written policy is required by the State Department of Labor.

Other Key Provisions

Applicants and employees must be given the opportunity to contest a non-negative test result by discussing with the medical review officer or confirmation testing laboratory representative any legitimate medical explanation for the non-negative test result. A confirmed positive test result may be reported to an employer only by a medical review officer. The medical review officer may not disclose any physical or mental condition of the applicant or employee to the employer. Employers must ensure the collection facility and laboratory used by the employer have the ability to test blood samples (if an employee requests that a blood sample be drawn at the time of testing). Employers who intend to discontinue testing under their approved substance use testing policy must notify the Department of Labor in writing and may not resume testing until they notify the Department that they intend to do so.

Marijuana

The use of medical marijuana under state law is deemed a “legitimate medical explanation” that justifies a positive drug test result.

Exempt Employers

Employers will be exempt from the Maine Substance Use Testing Law only if they have at least one employee located in Maine for whom substance use testing is federally mandated (e.g., Department of Transportation testing) and the testing of non-federally-mandated employees follows the same federal regulations.

What This Means For Employers

The new law gives Maine employers more options for substance use testing, including customer-required pre-access testing, and annual testing, for example. But employers also should be cautious if they test for marijuana in Maine because off-duty use of marijuana is protected and medical marijuana now is a legitimate medical explanation for a positive test result. Employers should review their existing testing policies to ensure that they follow all aspects of the revised law. Jackson Lewis attorneys are available to assist.

The U.S. Department of Justice issued an Order on April 22, 2026 immediately placing all FDA-approved marijuana products and marijuana products regulated by a state medical marijuana license in Schedule III of the Controlled Substances Act (CSA).

A second order also signed by Acting Attorney General Todd Blanche sets a June 29, 2026 hearing to consider the broader rescheduling of marijuana from Schedule I to Schedule III.

Under the federal CSA, the Drug Enforcement Administration (DEA) classifies drugs into five distinct categories, or schedules, depending on the drug’s acceptable medical use and its potential for abuse or dependence. As the drug schedule changes, so does the abuse potential. Schedule I drugs are defined as having no currently accepted medical use and a high potential for abuse. Schedule V represents drugs with the least potential for abuse.

The DEA has classified marijuana as a Schedule I drug since the inception of the CSA in 1970. In May 2024, the DOJ issued a proposed rule to reschedule marijuana to Schedule III. Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence. Some examples of Schedule III drugs are Tylenol with codeine, ketamine, buprenorphine, and anabolic steroids. The CSA requires that such a change be made through formal rulemaking on the record after an opportunity for a hearing.

The DEA announced on April 23, 2026, that it will hold a hearing on the proposed rescheduling of marijuana on June 29, 2026. The hearing will conclude no later than July 15, 2026. The purpose of the hearing is to “receiv[e] factual evidence and expert opinion regarding” whether marijuana should be transferred to Schedule III of the CSA. Any “interested person” (defined as “any person adversely affected or aggrieved by any rule or proposed rule issuable” under 21 U.S.C. 811) who wishes to participate in the hearing must file a written notice of intention to participate by May 24, 2026.

At the same time, DOJ issued a final order dated April 22, 2026, that places marijuana products approved by the FDA as well as marijuana products that are subject to state-issued medical marijuana licenses in Schedule III of the CSA. The FDA-approved marijuana products are Epidiolex, Marinol, Syndros, and Cesamet, all available by prescription. The final order also establishes an expedited registration process for entities holding state medical marijuana licenses, enabling them to engage in the manufacture, distribution, or dispensing of marijuana for medical purposes under federal law.

Unlicensed marijuana crops, bulk marijuana, and any marijuana or marijuana extract that has not been incorporated into an FDA-approved product (or state-licensed marijuana that does not satisfy the requirements relating to purchase and sale of marijuana by DEA) will remain in Schedule I of the CSA. The final order does not apply to synthetic THC or hemp.

Impact on Employers

Employers should view any employee’s use of state-issued medical marijuana or FDA-approved marijuana like other prescription medications. This includes engaging in the interactive process and the “direct threat” analysis for safety-sensitive positions under the Americans with Disabilities Act and comparable state laws.

Employers regulated by Department of Transportation (DOT) regulations should monitor revisions to DOT’s drug and alcohol testing regulations. Those regulations only permit drug testing for Schedule I and II drugs. DOT-regulated employers should continue testing for marijuana until DOT announces otherwise.

Finally, making marijuana a Schedule III drug still leaves a conflict with state recreational marijuana laws (adult-use laws) that permit use of marijuana without a medical prescription. For employers who conduct drug testing, many different state and local laws continue to regulate marijuana drug testing.

Please contact a Jackson Lewis attorney with any questions.

Oklahoma’s medical marijuana law has been amended to permit employers to have “zero tolerance” drug and alcohol standards regarding medical marijuana users in “safety-sensitive” positions. However, the law also revised the definition of “safety-sensitive positions” to remove employers’ discretion to classify positions as safety-sensitive and limits that definition to specific positions only. House Bill No. 3127. The amendment will take effect on Nov. 1, 2026.

The law still provides that employers may not refuse to hire, discipline, discharge, or otherwise penalize an applicant or employee solely on the basis of the applicant’s or employee’s status as a medical marijuana licensee.

However, with respect to positive drug test results, the amended law provides that an employer may not refuse to hire, discipline, discharge, or otherwise penalize an applicant or employee solely on the basis of a positive drug test result for marijuana, unless:

  1. The applicant or employee is not in possession of a valid medical marijuana license;
  2. The licensee possesses, consumes, or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations; or
  3. Such action is taken pursuant to a written drug and alcohol testing policy adopted and enforced in accordance with the Standards for Workplace Drug and Alcohol Testing Act, Section 551 et seq. of Title 40 of Oklahoma Statutes.

The amended language further clarifies that applicants and employees in safety-sensitive positions (as defined) will be subject to a zero-tolerance drug and alcohol standard.  This standard applies regardless of any employer policy that may treat employees in other positions differently.

Significantly, the definition of “safety-sensitive” has been revised to remove an employer’s discretion to consider positions to be safety sensitive based on the employer’s reasonable belief that the job could affect the safety and health of the employee or others. The revised definition reads:

“Safety-sensitive” means any position in which the employee performs one more more of the following duties, including, but not limited to:

  1. The handling, packaging, processing, storage, disposal or transport of hazardous materials;
  2. The operation of a motor vehicle, other vehicle, equipment, machinery or power tools;
  3. Repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage;
  4. Performing firefighting duties;
  5. The operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution;
  6. The extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component;
  7. Dispensing pharmaceuticals;
  8. Carrying a firearm; or,
  9. Direct patient care or direct child care.

Employers in Oklahoma should consult with counsel regarding the implications of the amended medical marijuana law and update their drug testing policies as needed. Please contact a Jackson Lewis attorney if you have any questions.

Ohio Gov. Mike DeWine signed, but partially vetoed, a bill (S.B. 56) that effectively recriminalizes certain intoxicating hemp beverages as of March 20, 2026. Specifically, hemp beverages may no longer contain more than .3% of any tetrahydrocannabinols (THC) under the new law.

Ohio voters passed a ballot measure legalizing recreational marijuana and related products in 2023. The new law rolls back part of that legalization, but Ohio employers’ drug and alcohol testing policies can remain intact.

Federal Regulation

Cannabis and its derivatives generally are classified as either marijuana or hemp under federal law. Marijuana is a controlled substance subject to regulation under the federal Controlled Substances Act, while hemp is not a controlled substance. The Act also regulates THC, other than THC in hemp. Delta-9 THC is the primary cannabinoid that produces the “high” typically associated with marijuana use.

The 2018 federal Farm Bill defined hemp to include the cannabis plant or any part of that plant with a Delta-9 THC concentration of not more than 0.3% by dry weight volume.

In November 2025, Congress voted to ban hemp products containing .4% THC or more. President Donald Trump signed this law, but it will not take effect until November 2026. Significantly, the definition of hemp was amended to refer to “total THC concentration,” which would also include Delta-8 and Delta-10 THC.

Veto Message

In his veto message, Gov. Mike DeWine noted that federal law will ban intoxicating hemp beginning in November 2026, but for public policy reasons, Ohio will begin banning these substances before then. His message went on to say:

Further, purveyors of intoxicating hemp often market their products as an alcohol substitute, even claiming health benefits. The facts are that THC is not analogous to alcohol, is metabolized differently than alcohol, and does not intoxicate in the same way that alcohol does. This can mislead consumers into thinking these products will have the same effects on them as alcohol, when there is no way to guarantee such claims, thus creating safety issues.

What This Means

THC differs from alcohol because it builds up in the body over time, which can lead to positive drug test results. Ohio law still permits employers to have zero tolerance drug and alcohol policies and to conduct drug and alcohol testing. Employers are permitted to have policies that prohibit positive test results for THC.

Please contact a Jackson Lewis attorney with any questions about your drug and alcohol testing policies and procedures.

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2026.  The rates are the same as 2025, except that the FRA Mechanical annual random alcohol testing rate has been decreased to 10%.

Agency2026 Random Drug Testing Rate2026 Random Alcohol Testing Rate
Federal Aviation Administration  25%10%
Federal Motor Carrier Administration  50%10%
Federal Railroad Administration  25%  covered service10%  covered service
Federal Railroad Administration25% maintenance-of-way10% maintenance-of-way
Federal Railroad Administration50% Mechanical10% Mechanical
Federal Transit Administration  50%10%
Pipeline and Hazardous Materials Safety Administration  50%N/A

President Donald Trump issued the “Increasing Medical Marijuana and Cannabidiol Research” Executive Order (EO) on Dec. 18, 2025. Contrary to what has been reported by many news outlets, the EO does not, by itself, reschedule marijuana to a Schedule III drug. Rather, it directs the Department of Justice (DOJ) 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, including 21 U.S.C. 811.”

The EO expresses the administration’s desire to make medical marijuana more accessible for medical research and includes criticism of the federal government’s “long delay in recognizing the medical use of marijuana.”

The Drug Enforcement Administration (DEA) is the arm of the DOJ that is responsible for classifying controlled substances based on their potential for abuse and accepted medical use. Under the federal Controlled Substances Act (CSA), the DEA classifies drugs into five distinct categories, or schedules, depending on the drug’s acceptable medical use and its potential for abuse or dependence.

As the drug schedule changes, so does the abuse potential. Schedule I drugs are defined as having no currently accepted medical use and a high potential for abuse. Schedule V represents drugs with the least potential for abuse.

Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence. Some examples of Schedule III drugs are Tylenol with codeine, ketamine, buprenorphine, and anabolic steroids.

The DEA has reviewed the issue of rescheduling marijuana several times over the years, most recently in 2024. Hearings were scheduled in 2024 and then postponed. No actions have been taken since that time. The current head of the DEA has been vocal in his opposition to marijuana legalization, so it remains to be seen what the DEA will do to implement the EO.

Rescheduling marijuana to Schedule III will present many questions for employers when enforcing their substance abuse and drug testing policies.

First, rescheduling marijuana to Schedule III will not legalize marijuana for recreational purposes. This means that state and local recreational marijuana laws will remain intact.

Second, it is unclear how federal regulation will impact state medical marijuana laws. Should rescheduling be completed, employees potentially may request marijuana use as a reasonable accommodation under the Americans With Disabilities Act (ADA). Such ADA claims have previously been rejected by courts because marijuana use is illegal at the federal level. However, state laws, depending on how they are worded, can add a level of complexity.

Third, employers who are regulated by Department of Transportation (DOT) regulations will have to watch for revisions to DOT’s drug and alcohol testing regulations. Those regulations only permit drug testing for Schedule I and II drugs. Rescheduling marijuana to Schedule III will significantly impact drug testing programs for federally regulated transportation employers. For now, reported comments from Transportation Secretary Sean Duffy’s office shortly after the EO’s signing reinforce the existing bar on marijuana use by those is safety-sensitive DOT-regulated roles.

Unless and until the DEA officially moves to reschedule marijuana, employers conducting drug testing, including those subject to the DOT’s drug testing requirements, should operate as usual.

Please contact a Jackson Lewis attorney with any questions, including on the interplay between federal and state workplace laws.

 

The Department of Transportation proposed adding fentanyl and norfentanyl (a metabolite of fentanyl) to the DOT drug testing panel and making certain other technical amendments to its drug testing program.

According to a Sept. 2, 2025, Notice of Proposed Rulemaking, DOT’s proposed rule is intended to harmonize with the Department of Health and Human Services’ (DHHS) Mandatory Guidelines For Federal Workplace Drug Testing Programs.

DOT mandates drug and alcohol testing for certain federal transportation workers, including those regulated by the Federal Motor Carrier Safety Administration, the Federal Aviation Administration, the Pipeline and Hazardous Materials Safety Administration, the Federal Railroad Administration and the Federal Transit Administration. The Coast Guard’s regulations also follow the same drug testing guidelines, although the Coast Guard is regulated by the Department of Homeland Security.

DOT currently mandates drug testing for amphetamines, cocaine, marijuana, opioids (specifically consisting of codeine, morphine, heroin, hydrocodone, hydromorphone, oxycodone and oxymorphone) and PCP. The proposed new rule will add fentanyl to the urine and oral fluid drug testing panels and norfentanyl to the urine testing panel. (Oral fluid testing still is not yet permissible under DOT regulations because DHHS has not yet certified at least two laboratories to conduct oral fluid testing.)

DOT explained that it is adding fentanyl to its drug testing panels for safety reasons. DOT cited certain facts published by the Centers for Disease Control and Prevention, among other significant data, relied on for this decision:

  • Drug overdose death rates involving fentanyl increased by 279% from 5.7 per 100,000 in 2016 to 21.6 in 2021, according to CDC’s National Center for Health Statistics data.
  • While provisional data from the CDC indicates a 25.5% decrease in overdose deaths in the 12 months ending October 2024 compared with the same period in 2023, approximately 150 Americans die every day from overdose involving illegal, synthetic opioids such as illegally made fentanyl. Overdose remains the leading cause of death among Americans aged 18-44.
  • Approximately 70% of U.S. overdose deaths in 2023 were estimated to involve illegally manufactured fentanyls (IMFs). Local reports indicate reemergence of carfentanil, a fentanyl analog.

DOT’s proposed rule also would make the following additional changes:

(1) Raise the laboratory confirmatory test cutoff for morphine in urine drug testing from 2,000 ng/ml to 4,000 ng/ml;

(2) Remove the MRO requirement to determine clinical evidence of illegal opioid use to support a positive codeine or morphine result in urine and oral fluid testing;

(3) Add the word “biomarker” to certain definitions;

(4) Authorize laboratories to conduct biomarker testing once DHHS approves laboratory biomarker testing;

(5) Amend the analyte nomenclature for marijuana in both drug testing panels; and

(6) Revise the footnotes in both drug testing panels to be more specific.

The comment period has closed, and the proposed changes should take effect sometime in early 2026.

DOT-regulated employers will need to revise their drug and alcohol testing policies to be consistent with the new rule once it takes effect.

Please contact a Jackson Lewis attorney with any questions about employer compliance with this and other workplace laws.