The Iowa Supreme Court recently clarified that a compliant random drug testing program under Iowa law requires excluding those who are not scheduled to work the day of the testing from the pool of employees who could be selected. Hampe v. Charles Gabus Motors Inc. d/b/a Toyota of Des Moines et ano., No. 22-1599 (Iowa Sup. Ct. Apr. 11, 2025).

Iowa has one of the most technical drug testing laws in the country. It allows unannounced random testing of:

(1) The entire employee population at a particular work site of the employer except for employees not subject to testing pursuant to a collective bargaining agreement, or employees who are not scheduled to be at work at the time the testing is conducted because of the status of the employees or who have been excused from work pursuant to the employer’s work policy prior to the time the testing is announced to employees.

(2) The entire full-time active employee population at a particular work site except for employees not subject to testing pursuant to a collective bargaining agreement, or employees who are not scheduled to be at work at the time the testing is to be conducted because of the status of the employee or who have been excused from work pursuant to the employer’s working policy.

(3) All employees at a particular work site who are in a pool of employees in a safety-sensitive position and who are scheduled to be at work at the time testing is conducted, other than employees not subject to testing pursuant to a collective bargaining agreement, or employees who are not scheduled to be at work at the time the testing is to be conducted or who have been excused from work pursuant to the employer’s work policy prior to the time the testing is announced to employees.

Iowa Code 730.5(8)(a).

In the case before the Supreme Court, the employer used a random testing pool that consisted of all employees. The employer did not exclude employees who were not scheduled to be at work at the time the testing was conducted or who were excused from work pursuant to the employer’s policy. Instead, the employer had a list of alternate employees who could be tested if selected employees were not at work on the day the testing was conducted.

The Iowa Supreme Court held that this practice did not “substantially comply” with the law. Strict compliance with the law is not required, it explained, but substantial compliance is required. The Court held that the employer did not substantially comply with the law when it made no attempt to exclude employees who were not scheduled to be at work or because they had been excused pursuant to an employer policy.

Focusing on the plain language of the statute, the Court stated that it is the way the random pool is constructed that matters, even if, as a practical matter, it is difficult to comply with the statute’s requirements given the “fluid circumstances” of today’s workplace.

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

The Third Circuit Court of Appeals has held that the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”) does not permit a private citizen to bring a civil action for enforcement of the provisions prohibiting discrimination against cannabis users.  Erick Zanetich v. Wal-Mart Stores East, Inc. et al., Docket No. 23-1996 (3d Cir. Dec. 9, 2024).

CREAMMA was passed to control and legalize cannabis in a similar fashion to the regulation of alcohol for adults, including preventing the sale or distribution of cannabis to people under the age of 21. The law also provides certain protections to current and prospective employees, including preventing employers from refusing to hire a job applicant because of the applicant’s use or non-use of cannabis, as well as from taking an adverse employment action against an employee based solely on a positive cannabis drug test. However, CREAMMA does not expressly allow citizens to bring a private cause of action, such as a civil action, to remedy alleged employment discrimination suffered because of an individual’s use of cannabis.  This conclusion recently was challenged and the Third Circuit confirmed that CREAMMA does not confer a private right of action. 

Zanetich applied for an asset protection position at a Walmart facility in Swedesboro, New Jersey.  Zanetich was offered the job, subject to taking and passing a drug test. After Zanetich tested positive for cannabis, the job offer was rescinded.  He subsequently filed a two-count Complaint against Walmart alleging Walmart discriminated against him for his use of cannabis in violation of CREAMMA and that Walmart wrongfully rescinded his job offer in violation of public policy. Walmart removed the case to federal court and moved to dismiss.  The District Court granted Walmart’s motion, with prejudice, dismissing the case and finding that CREAMMA does not contain an implied remedy for violations of its employment-related protections, nor does the public policy exception to the recission of a job offer based on a positive drug test for cannabis apply to Zanetich’s claims. As the case was dismissed with prejudice, Zanetich did not have the opportunity to cure any defects in the Complaint by filing an amended Complaint.

Zanetich appealed this decision to the Third Circuit Court of Appeals, which affirmed the District Court’s decision to dismiss the Complaint.

There was no dispute CREAMMA does not expressly provide for a private right of action, and, the Third Circuit ultimately held that CREAMMA did not imply a private right of action either.  Specifically, the Court held CREAMMA protects both cannabis and non-cannabis users and, therefore, Zanetich could not establish the statute provided him with any special benefit.  The Court further noted that if the Legislature wanted to include a private right of action for citizens, it would have done so explicitly. Finally, the Third Circuit held the CREAMMA’s explicitly-stated underlying purposes concerned the use and distribution of cannabis, which does not support a private right of action to enforce the employment-related provisions. Therefore, the Court upheld the District Court’s dismissal of Zanetich’s first claim.

The Court also analyzed the applicability of Pierce v. Ortho Pharm. Corp, which creates an exception to the at-will employment doctrine for employees who were terminated in violation of public policy. Ultimately, the Third Circuit held this exception only applies to former employees terminated from their position because of their complaints about a suspected violation of a clear mandate of public policy. As Zanetich was not a former employee, but instead was a prospective applicant, the Third Circuit upheld the District Court’s dismissal of this claim as well.

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2025.  The rates are the same as 2024, except that PHMSA has increased its random drug testing rate to 50%.

Agency2025 Random Drug Testing Rate2025 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% Mechanical25% Mechanical
Federal Transit Administration  50%10%
Pipeline and Hazardous Materials Safety Administration  50%N/A

Florida law requires employers to consider accommodations for off-duty use of medical marijuana, a Florida state court has held and granted the plaintiff’s motion for summary judgment. Giambrone v. Hillsborough County, No. 20-CA-4719 (Fla. 13th Cir. Ct. Dec. 10, 2024).

The plaintiff, Angelo Giambrone, was employed by Hillsborough County as an emergency medical technician (EMT) and was selected for a random urine drug test. He tested positive for marijuana. In accordance with an applicable collective bargaining agreement and Hillsborough County’s Drug Free Workplace Policy, Giambrone presented his employer and the testing doctor with a valid medical marijuana card.

Hillsborough placed Giambrone on administrative leave. It never alleged Giambrone used marijuana during the course and scope of his employment as an EMT or that his job performance was negatively affected by his use of cannabis outside of work. After Giambrone’s positive drug test, Hillsborough reported him to the EMT licensing board. The board subsequently dropped their investigation for lack of probable cause based on Giambrone’s possession of a medical marijuana card.

Giambrone sued the employer, alleging disability discrimination for failure to accommodate under the Florida Civil Rights Act. He also alleged wrongful termination and breach of contract for failure to accept his state-issued medical marijuana card as justification for his positive drug test result. Hillsborough argued that a medical marijuana card does not immunize an employee from both federal law and employee discipline.

The court noted Giambrone was a qualified patient suffering from anxiety and insomnia that “significantly impacts his day-to-day life when unmedicated.” The court further noted the plain language of Article X, Section 29 of the Florida Constitution states that it does not require accommodations for any on-site use of medical marijuana “in any place of education or employment ….”  The court concluded the Florida State Constitution requires employers to accommodate the off-site use of marijuana by qualified patients. Thus, any legislative ban on the private off-duty use of medical marijuana by qualified patients would be unconstitutional under state law. Accordingly, Giambrone was protected under the Florida Civil Rights Act and was entitled to a disability accommodation.

The court was unpersuaded by the argument that marijuana is illegal under federal law, because Giambrone’s EMT license was supervised by the state of Florida, not federal law. The Florida Department of Health dropped its investigation of Giambrone because he held a valid medical marijuana card. In addition, the court noted that language in the collective bargaining agreement permitted employees to report the use of prescription medications that are authorized under federal or state law to explain their positive drug test results.

Florida employers should review their policies and practices with respect to positive drug test results caused by the off-duty use of medical marijuana.

(Law Graduate Yori Johnson assisted in the preparation of this blog post.)

Nebraska voters approved medical cannabis measures, while voters in Florida, North Dakota, and South Dakota rejected ballot initiatives to legalize recreational cannabis on election day.

Nebraska Medical Cannabis Measures

Nebraska voters approved Ballot Initiatives 437 and 438, which legalize and regulate medical cannabis in the state. While the measures were widely supported, there is lingering uncertainty due to pending legal challenges about the validity of signatures on each measure’s petition for ballot access. It may be weeks before the Lancaster County District Court decides whether the initiatives were properly on the ballot.

Setting aside the pending legal challenges, the State Canvassing Board will meet to certify statewide voting totals on Dec. 2, 2024 (the fourth Monday following the election). Within 10 days after certification of the results by the State Canvassing Board, the governor must issue a proclamation declaring the approved measures to be in full force and effect.

Initiative 437, the Nebraska Medical Cannabis Patient Protection Act, would allow qualified patients to use, possess, and acquire up to five ounces of cannabis for the alleviation of a medical condition, its symptoms, or side effects of the condition’s treatment. Caregivers would also be permitted to possess and acquire up to five ounces of cannabis on behalf of the qualified patient.

The law defines “qualified patient” as an individual 18 years of age or older with a written recommendation from a health care practitioner stating that, in the practitioner’s professional judgment, the potential benefits of cannabis outweigh the potential harms for the alleviation of a patient’s medical condition, its symptoms, or side effects of the condition’s treatment. Individuals under 18 years of age require both a written recommendation from a health care practitioner and written permission of an authorized legal guardian or parent.

Initiative 438, the Nebraska Medical Cannabis Regulation Act, would create the Nebraska Medical Cannabis Commission and vests the commission with authority to “regulate all phases of the control of the possession, manufacture, distribution, delivery, and dispensing” of medical cannabis for medical purposes by registered cannabis establishments.

Neither ballot measure addresses employer rights or obligations with respect to medical cannabis or qualified patients. However, there may be some risk of employment discrimination claims associated with medical cannabis. The Nebraska Fair Employment Practice Act (NFEPA) does not protect current users of illegal drugs, but illegal drug use under the law does not include “the use of a drug taken under supervision by a licensed health care professional…or any other use authorized by…other provisions of state law.” Additional legislation or guidance from Nebraska courts is needed to clarify the protections available to qualified patients under NFEPA, if any.

If the laws take effect, employers should consult with counsel before taking adverse employment action against qualified patients based on lawful medical cannabis use.

The Pittsburgh City Council unanimously passed an ordinance prohibiting discrimination against medical marijuana patients in the workplace and limiting certain types of marijuana drug testing by employers as to these patients. Mayor Ed Gainey is expected to sign the measure and it will take effect immediately after signing.   

Pennsylvania state law already protects medical marijuana users from employment discrimination.

The Pittsburgh Ordinance applies to any employer, employment agency, or labor organization that employs at least five employees. Employers excluded from coverage are religious, fraternal, charitable, and sectarian organizations not supported in whole or in part by any governmental appropriations.

The Pittsburgh Ordinance protects individuals who have a “serious medical condition, disability, or handicap such that qualifies them for medical marijuana use,” as well as individuals who are certified under the Pennsylvania State Medical Marijuana Act of 2016 (Act 16) to access marijuana for a certified medical use.

Under the Pittsburgh Ordinance, an employer may not require pre-employment testing for marijuana or testing for marijuana during the course of employment as a condition of continued employment or prospective employment. However, exceptions include:

  • Any position which is subject to drug testing due to regulations of the U.S. Department of Transportation or Pennsylvania Department of Transportation;
  • Any position requiring the employee to carry a firearm; and
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses pre-employment drug testing.

Like under Act 16, the Pittsburgh Ordinance provides that medical marijuana patients may not operate or be in physical control of certain regulated chemicals, high-voltage electricity, or any other public utilities if they have more than 10 nanograms of active THC in their bloodstream. Medical marijuana patients also may not perform certain tasks or duties while under the influence of marijuana such as ones at heights or in confined spaces (for example, mining), any task deemed to be life-threatening to either the employee or employer, and any duty that could result in a public health or safety risk.

Pittsburgh employers may:

  • Conduct marijuana drug testing when there is reasonable cause to suspect an employee is under the influence of a drug while at work or after a workplace accident.
  • Take disciplinary action against a medical marijuana patient if the employee’s conduct falls below the standard of care normally accepted for that position while under the influence in the workplace.

Moreover, employers do not have to allow use of medical marijuana on workplace premises or property. They also are permitted to conduct testing for illegal use of controlled substances. Employers located and operating in the Pittsburgh area should reevaluate their hiring policies and drug policies and ensure they are consistent with the Pittsburgh Ordinance, state law, and federal law.

The Drug Enforcement Administration announced on August 29, 2024 that it will hold a public hearing to address the proposed rescheduling of marijuana from Schedule I to Schedule III of the federal Controlled Substances Act (CSA).  The hearing will take place on December 2, 2024 at 9 am ET at 700 Army Navy Drive, Arlington, Virginia 22202. 

The purpose of the hearing is to “receive factual evidence and expert opinion regarding” whether marijuana should be transferred to Schedule III of the federal CSA.

Under the federal 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. Schedule I drugs are defined as having no currently accepted medical use and a high potential for abuse. As the drug schedule changes, so does the abuse potential, with Schedule V representing the drugs with least potential for abuse. Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence.

If the rule is finalized, marijuana would be available for medical use only, not legalized at the federal level.

DEA published its Notice of Proposed Rulemaking on May 21, 2024.  It received more than 43,000 comments on the proposed reclassification.

Anyone who wishes to participate in the hearing must provide written notice of their desired participation on or before September 30, 2024, in accordance with the regulatory requirements published in the Federal Register notice.

In November 2023, Ohio passed a recreational marijuana law. Sales of recreational marijuana began on August 6 in the Buckeye State, and employers can expect an uptick in employee use.

Employers’ rights with respect to marijuana use are unaffected by the new law. Employers are not:

  • Required to permit or accommodate an employee’s use, possession, or distribution of marijuana; nor
  •  Prohibited from refusing to hire, discharging, disciplining, or otherwise taking an adverse action against an individual because of the individual’s use, possession, or distribution of marijuana.

This is true even if an individual’s marijuana use is lawful and off-duty. The new law does not create a cause of action for employees or applicants based on any such action by an employer. Employers in Ohio can continue enforcing drug testing policies, drug-free workplace policies, and zero-tolerance drug policies.

Employers that continue to prohibit marijuana use and plan to test for it may want to remind employees of the company’s policy, requirements, and expectations. Among other things, Ohio employers should ensure their drug and alcohol policies clearly state that marijuana may not be used during work time, including during meal breaks and rest breaks, and that marijuana impairment during work time will not be tolerated.

It is also a good time to reevaluate drug policies to determine whether they are tailored to the needs of the business and consistent with both state and federal law. Should you have questions about marijuana-related legal developments in Ohio and around the country(as each state is different), or need assistance revising your drug and alcohol policy, please contact the Jackson Lewis attorney with whom you usually work or a member of our Drug Testing and Substance Abuse Management team.

Minnesota will amend its drug testing law to permit oral fluid testing for drugs, cannabis and alcohol, effective August 1, 2024.

The Drug and Alcohol Testing in the Workplace Act (“DATWA”) currently requires employers who conduct drug and alcohol testing to use specific certified laboratories and to permit confirmatory re-testing after an applicant or employee tests positive.  Under the new provision, oral fluid testing will be permitted for drugs, cannabis, and alcohol, and will not require the services of a testing laboratory.  Moreover, employers will not be required to follow the written notice requirements for positive and negative test results and the right to confirmatory re-testing that DATWA requires for other types of drug and alcohol tests. 

“Oral fluid test” means analysis of saliva at threshold detection levels contained in the standards of one of the programs listed in DATWA (i.e., for drugs and cannabis:  the National Institute on Drug Abuse, the College of American Pathologists, and the New York Department of Health; or for alcohol:  the College of American Pathologists and the New York Department of Health).

Employees and applicants must be informed of the test result at the time of the oral fluid test.  Within 48 hours of an oral fluid test that is positive, inconclusive or invalid, the employee or applicant may request drug, alcohol or cannabis testing at no cost to the employee or applicant using the services of a testing laboratory specified by DATWA.  All of DATWA’s existing written notice requirements and rights to a confirmatory re-test will apply to such testing. 

Minnesota employers should consider whether oral fluid testing is right for their workplace.  Employers will need to revise their written drug, cannabis and alcohol testing policies to incorporate the requirements for oral fluid testing.

The Department of Justice (DOJ) published a Notice of Proposed Rulemaking to reschedule marijuana from Schedule I to Schedule III of the federal Controlled Substances Act (CSA) in the Federal Register on May 21, 2024. If the rule is finalized, marijuana would be considered a drug with “moderate to low potential for physical and psychological dependence” and would be available for medical use only, not legalized at the federal level.

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

Marijuana has been a Schedule I drug since the inception of the CSA in 1970. In August 2023, the Department of Health and Human Services (DHHS) recommended that marijuana be rescheduled to Schedule III. The CSA requires that such a change be made through formal rulemaking on the record after an opportunity for a hearing.

If the transfer to Schedule III is finalized, any drugs containing marijuana will be subject to the applicable prohibitions in the federal Food, Drug, and Cosmetic Act, enforced by the Food and Drug Administration (FDA).

Additionally, if marijuana is transferred to Schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA.

Eight-Factor Analysis

The Notice of Proposed Rulemaking set forth the following eight factors that are used when considering rescheduling. The conclusions reached by DHHS and DOJ suggest that they do not agree on all of these issues:

  1. The drug’s actual or relative potential for abuse. DHHS concluded that marijuana does not lead to substance use disorder as frequently as other substances such as heroin, oxycodone, fentanyl, cocaine, alcohol and others. In 2016, DEA found that marijuana had a high potential for abuse and now recommends gathering additional data to assess marijuana’s actual or relative potential for abuse.
  2. Scientific evidence of its pharmacological effect, if known. In the past 30 years, the potency of marijuana’s delta-9 THC has increased dramatically. While DHHS noted that marijuana use can produce pleasurable effects, it may also induce sedation and anxiety responses. Abuse can lead to addiction and the need for medical attention. DEA believes that additional data is necessary to assess this factor.
  3. The status of current scientific knowledge regarding the drug or other substance. DHHS found that inhaling marijuana produces immediate effects while oral administration produces a slower onset of psychological effects. DEA noted that additional data regarding routes of administration of marijuana and the impact on delta-9 THC potency may be appropriate for consideration.
  4. Its history and current pattern of abuse. DHHS concluded that the prevalence of marijuana is less than that of alcohol and significantly more than that of other drugs. DEA found in 2016 that marijuana is the most widely used illicit drug and anticipates that additional information arising from this rulemaking will further inform the findings with regard to rescheduling.
  5. The scope, duration, and significance of abuse. DHHS concluded that drugs other than marijuana, such as alcohol, heroin, and cocaine, are more likely to lead to substance use disorder. DEA found in 2016 that the abuse of marijuana was widespread and one of the primary drugs leading to admission for substance abuse treatment.
  6. What, if any, risk there is to the public health. DHHS found that the risks posed by marijuana use to public health are low compared to other drugs. For overdose deaths, marijuana always is ranked lowest. DEA concluded in 2016 that marijuana poses a number of risks to public health, including impaired driving and physical and psychological dependence. DEA anticipates that additional data on public safety risks may be appropriate for consideration.
  7. Its psychic or physiological dependence liability. DHHS found that marijuana can produce both psychic and physical dependence in humans, although the symptoms are usually mild. In 2016, DEA found that long-term heavy use of marijuana can lead to physical and psychological dependence and that this dependence is underdiagnosed and undertreated in the medical setting. DEA anticipates that additional information may be appropriate for consideration.
  8. Whether the substance is an immediate precursor of a substance already controlled. DHHS and DEA both concluded that marijuana is not an immediate precursor of another controlled substance.

Rationale for Schedule III

Despite the apparent disagreement on many issues, DOJ ultimately concurs with the recommendation to reschedule marijuana to Schedule III. First, DHHS and DOJ both agree that marijuana has a potential for abuse less than other drugs and substances listed in Schedules I and II.

Second, DHHS recommended a finding that marijuana has a currently accepted medical use in the United States, specifically for medically supervised treatment of anorexia related to a medical condition, nausea and vomiting (e.g., chemotherapy-induced), and pain. DOJ concurs with DHHS’s conclusion for purposes of the initiation of the rulemaking proceedings.

Finally, as to the level of physical or psychological dependence, DOJ agrees with DHHS’s conclusion that the abuse of marijuana may lead to moderate or low physical dependence, depending on the frequency and degree of marijuana exposure.

Types of Marijuana to be Rescheduled

Rescheduling applies to marijuana as defined by the CSA, including delta-9 THC derived from the marijuana plant (other than the mature stalks and seeds) that falls outside the definition of hemp. Rescheduling does not apply to synthetic marijuana or hemp. Synthetic marijuana (e.g., delta-10) will remain on Schedule I.

Comments on the Notice of Proposed Rulemaking may be submitted electronically within 60 days of May 21, 2024. It will take months for DEA to review those comments, so it is unclear when or if the rule might be finalized.

Impact on Employers

Rescheduling marijuana to Schedule III will not clear up the questions and difficulties that employers face when enforcing their drug policies, particularly their drug testing policies. It may take a long time for the FDA to regulate marijuana. In the meantime, employees already are obtaining it under state laws at state-approved dispensaries. It is unclear how federal regulation will impact the current systems of state regulation in the states that have them.

Once marijuana begins to be regulated and available at the federal level, there may be legal claims asserted under the federal Americans With Disabilities Act (ADA) related to requests for reasonable accommodations. ADA claims related to marijuana use generally have been rejected by the courts because marijuana was illegal at the federal level.

Additionally, 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, there still will be many different state and local laws impacting marijuana drug testing; the change at the federal level will not make compliance with those laws any easier.