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.


The U.S. Drug Enforcement Administration will recommend that marijuana should be rescheduled from a Schedule I drug to a Schedule III drug, according to an announcement made April 30, 2024 by the U.S. Department of Justice.  This means that marijuana would be considered a drug with “moderate to low potential for physical and psychological dependence.”

Under the federal Controlled Substances Act, 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 have a high potential for abuse and the potential to create severe psychological and/or physical dependence.  As the drug schedule changes, so does the abuse potential, with Schedule V representing the drugs with least potential for abuse.

Marijuana has been a Schedule I drug since the inception of the Controlled Substances Act in 1970.  Schedule I drugs are defined as having no currently accepted medical use and high potential for abuse.  Examples of Schedule I drugs include heroin, LSD, Ecstasy, methaqualone and peyote.

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.

This move was expected after the U.S. Department of Health and Human Services recommended in August 2023 that DEA reschedule marijuana to Schedule III.

The DEA’s proposal now must be reviewed by the White House Office of Management and Budget.  Once OMB agrees, DEA will then accept public comments.  After the public comment period, an administrative judge will review the proposal.  If accepted, the DEA will publish a final rule.

Once marijuana becomes a Schedule III drug, it will be available for medical use and can be prescribed by health care providers and dispensed by pharmacies.  This reclassification also will relieve the tax burden on cannabis businesses and benefit the financial institutions who work with these businesses.

Impact on Employers

The most significant impact on employers once marijuana is permitted for medical use at the federal level is that there likely will be more legal claims asserted under the federal Americans With Disabilities Act related to requests for reasonable accommodations.  Up until this time, ADA claims related to marijuana use generally were rejected by the courts because marijuana was an illegal drug at the federal level.  Users of marijuana had to file claims under state law if the applicable state law permitted it.

Additionally, making marijuana a Schedule III drug at the federal level still leaves a conflict with state recreational marijuana 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. 

Rescheduling marijuana to Schedule III also does not impact hemp products with no more than .3% THC which were legalized at the federal level a few years ago, although they are not being regulated.  The Food and Drug Administration stated last year that it wants to work with Congress on “new regulatory pathways” for hemp and CBD products but no such “pathways” have materialized.  In March 2024, twenty-one state Attorneys General signed a letter asking Congress to revise the Farm Bill that legalized hemp products to clarify that there can be no loophole for any products that cause intoxication.  The letter pointed out that “ . . . the reality is that this law has unleashed on our states a flood of products that are nothing less than a more potent form of cannabis, often in candy form that is made attractive to youth and children – with staggering levels of potency, no regulation, no oversight, and a limited capability for our offices to rein them in.”

The proliferation of these hemp and CBD products also makes workplace drug testing complicated because drug tests generally cannot distinguish between marijuana, hemp and CBD and generally cannot detect recent use or current impairment.

A recent Iowa court decision highlights the risks to employers who do not strictly comply with all facets of the state’s drug testing law, Iowa Code Section 730.5, which is one of the nation’s most technical drug testing laws.   Scott Hampe v. Charles Gabus Motors Inc. d/b/a Toyota of Des Moines et ano., No. 22-1599 (Iowa Court of Appeals January 10, 2024).

Hampe worked for Gabus for fourteen years.  Gabus’s employee handbook stated that the drug and alcohol testing program complied with Iowa Code Section 730.5 and that violations of the policy could result in disciplinary action up to and including termination.  Gabus’s policy included random testing and all active employees were included in the random testing pool.

Hampe was scheduled to work on December 5, 2019, the day that a random test was scheduled.  He had an appointment with customers at 9:00 am but planned to leave work after that appointment because his daughter was sick and home from school.  But when he arrived at work at 9:00, he was advised to report for a random test.  Hampe’s first test was out of temperature range and he was told to wait and then submit another specimen.  Ten minutes later, he was unable to produce another urine specimen.  Hampe returned to the waiting room to drink more water but after twenty minutes, he stated that he needed to leave because his daughter was home sick.  He was advised that if he left, it would constitute a refusal to test and he would be fired.  Hampe said that he shouldn’t have even been selected because his name was not on the list.  (There was an initial list of employees to be tested along with an alternate list in the event that employees on the initial list were not present at work that day.  Hampe’s name was the last name on the alternate list).

Hampe was terminated for refusing to test and filed suit under the Iowa drug testing law, which provides a private right of action to aggrieved individuals.  The law also states that the employer has the burden of proving compliance with the law’s requirements.  

Hampe’s claims initially were dismissed but on appeal, the court held that further proceedings would be allowed to resolve these issues:

  • The Random Testing Pool – Gabus used a list of all employees.  Hampe argued that such a list does not comply with the law because the list did not ensure that those selected would be at work on the test date.  Gabus argued that its selection process was compliant because there was a back-up list to make up for those employees who were not at work on the test date.  Hampe also argued that a month before the test at issue, he was called in for a drug test on his day off, leading the court to conclude that there were issues of fact on this issue.
  • Supervisor Training requirements – Hampe claimed that the only supervisor involved in the random testing was not trained.  Iowa law requires initial training and annual training of supervisors.  The court concluded that there was an issue of fact as to whether the supervisor involved in the random testing had completed annual trainings that complied with the statute’s requirements.
  • Uniform Disciplinary Policy – Gabus’s policy allowed the employer to take a variety of potential disciplinary actions in response to a policy violation.  The court held that “the statute requires uniform requirements for what actions the employer ‘shall’ take.”  Hampe also argued that other employees were treated differently and more favorably than he, giving rise to issues of fact.

Iowa employers must ensure that their drug and alcohol testing policies comply with all requirements of Iowa Code Section 730.5.

Happy New Year!  The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2024.  These rates are the annual minimum drug and alcohol random testing rates. The rates are the same as the 2023 rates.

Agency2024 Random Drug Testing Rate2024 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  25%N/A

The Biden Administration has released a Recovery-Ready Workplace Toolkit: Guidance and Resources for Private and Public Sector Employers. The Toolkit is part of Administration’s efforts to beat the opioid epidemic.   It provides information, tools, and resources to help employers effectively prevent and respond to substance misuse in the workforce and reduce its impact on employers and on the broader community. 

The Toolkit encourages employers to institute “Recovery Ready Workplaces” to help reduce the stigma of substance use disorders and promote employment opportunities for those recovering from those disorders. Among other things and as feasible, “recovery ready” employers will take actions and adopt policies to:

• Hire people in recovery, including those with a history of criminal justice system (CJS) involvement related to their substance use;

• Identify work-related risk factors for substance use and take steps to address them;

• Ensure employees have access to treatment, recovery supports and other services and supports they need;

• Delineate clear return-to-work polices to facilitate a successful transition back to the workplace following treatment or to manage work during treatment when an absence is not required;

• Offer appropriate medical or disability leave to receive treatment for injuries and other conditions leading to pain and to receive SUD treatment when needed;

• Provide for reasonable accommodations, such as scheduling flexibility or leave to permit receipt of outpatient treatment or recovery support services or to participate in mutual aid meetings, such as Alcoholics Anonymous (AA), Narcotics Anonymous (NA), and SMART Recovery;

• Allow for temporary reassignment from certain safety-sensitive positions when needed;

• Plan for the return to work following SUD treatment or the continuation of work during treatment, providing needed reasonable accommodations and workplace supports, if available, and specifying expectations, milestones and time lines;

• Permit temporary or permanent modification of minor job requirements or reassignment to a vacant position as a reasonable accommodation when warranted;

• Support employee resource groups (ERGs) or other employee-led activities by or on behalf of employees in recovery from SUD; and,

• Facilitate access to peer recovery support services or peer mentoring in the workplace provided by recovering employees who volunteer to serve in such a role, by individuals employed to serve in that function, through an agreement with a recovery community organization (RCO) or other entity, or with the help of local volunteers.

The intent is to reduce the stigma around substance use disorders, provide employment opportunities, maintain safe workplaces, and demonstrate to employees that their employer supports individuals in recovery.

The new year is approaching quickly and employers must get ready for the new marijuana laws that will take effect in California and Washington. These laws are very different from other states’ marijuana laws. In our firm’s latest “We Get Work” podcast, Catherine Cano and I discuss what employers need to know about these laws. Please click on the link below to access the podcast:

California and Washington’s Controversial 2024 Marijuana Laws: Are You Ready? – Jackson Lewis

Joining 23 other states, Ohio has passed a recreational marijuana law. On November 7, 2023, Ohioans voted to pass an initiative legalizing and regulating the cultivation, sale, purchase, possession, use, and home growth of recreational marijuana. The new law does not require an employer to “accommodate an employee’s use, possession, or distribution of adult use cannabis.”

The ballot language allows the sale, purchase, and possession of marijuana by Ohio residents aged 21 and older. In December, adults can legally possess up to 2.5 ounces of marijuana, up to 15 grams of cannabis extract, and grow up to six marijuana plants in their primary residence or up to 12 plants per residence with two or more adult residents.

Ohioans purchasing recreational marijuana are subject to a 10 percent excise tax, along with state and local sales taxes. According to the ballot text, some of the revenue collected from these taxes will support social equity and jobs programs.

Ohio’s medical marijuana program remains in effect and unchanged by the new law.

The law will become effective 30 days after the election, on December 7, 2023. Further, the new law authorizes Ohio’s Department of Commerce to create rules for how the program will work.

Employer Rights

Like Ohio’s medical marijuana program, the new law does not require employers to permit or accommodate an employee’s use, possession, or distribution of marijuana. Further, employers are not 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.

There is no cause of action under the new statute for employees or applicants based on any such action by an employer. This is true even if an employee’s marijuana use is lawful and off-duty.

The new law also permits employers to continue enforcing drug testing policies, drug-free workplace policies, and zero-tolerance drug policies.

For purposes of unemployment compensation, an employer has “just cause” to terminate an employee for use of marijuana in violation of the employer’s drug policy.

Next

Ohio employers should consider whether their current drug policies continue to serve their business needs. Employers also should carefully review drug policies to ensure compliance with Ohio and federal law and make sure their policies are communicated clearly to employees and enforced consistently.

On October 7, 2023 Governor Newsom signed Senate Bill (SB) 700, which makes it unlawful under the Fair Employment and Housing Act (FEHA) for an employer to discriminate against a job applicant based on information regarding prior use of cannabis that is learned from a criminal history.

However, SB 700 does not preempt state or federal laws requiring an applicant to be tested for controlled substances, nor is an employer prohibited from asking about an applicant’s criminal history as long as in compliance with state law requirements.  

This change takes effect on January 1, 2024.

As a reminder, in 2022, the California legislature passed Assembly Bill (AB) 2188, which makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based upon: (1) a person’s use of cannabis off the job and away from the workplace, or (2) an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. AB 2188 also takes effect on January 1, 2024.  There is an exemption for the building and construction trades.

If you have questions about SB 700 or related issues, contact a Jackson Lewis attorney to discuss.

The District of Columbia is joining the increasing number of jurisdictions providing greater protections for private employees who use marijuana off-duty, during non-work hours. Such development remains in contrast with federal law, which still classifies marijuana as a controlled substance, prohibiting both possession and use of marijuana.

In addition to protections for private employees, the D.C. Cannabis Employment Protections Amendment Act of 2022 (C.E.P.A.A.) imposes new obligations on private employers to inform employees of the new laws. D.C. Law 24-190 §§ 100 et seq.; tentatively D.C. Code §§ 32-921.01 through .08. The C.E.P.A.A. goes into effect July 13, 2023.

Highlights for D.C. Employers

Under C.E.P.A.A., employers will be prohibited from taking personnel actions against an individual for cannabis or marijuana use off-premises during non-work hours.

Employers are permitted to take action related to such use, however, if the employee is designated as safety sensitive, a federal contract or statute prohibits marijuana use, or the employee used or possessed marijuana at the employer’s premises or during work hours.

Drug-Testing

The presence of cannabinoid metabolites in an employer-required or requested drug test may be used to justify adverse action if the employee is impaired by the use of cannabis at the place of employment or during work hours.

Cannabis impairment is exemplified by the employee manifesting specific, articulable symptoms that substantially decreases or lessens the employee’s performance of duties or such symptoms interfere with the employer’s ability to maintain a safe and healthy workplace. This will alter the availability of pre-employment drug testing for many private employers in the District of Columbia.

Safety Sensitive-Designated Positions

Employers must provide notice to their employees of the new protections within 60 days of July 13 or upon hire.

The notice requirement includes informing employees if their position has been designated as safety sensitive, among other requirements. Safety-sensitive positions are those reasonably foreseeable that, if the employee performs the position under the influence of drugs or alcohol, the person could cause actual, immediate, and serious bodily injury or loss of life to themself or others. The following are statutory examples of safety sensitive positions:

(A)    Security services such as police or security that involves the custody, handling, or use of weapons; 
(B)    Regular or frequent operation of a motor vehicle or other heavy or dangerous machinery;
(C)    Regular or frequent work on an active construction site; 
(D)    Regular or frequent work near gas or utility lines; 
(E)    Regular or frequent work involving hazardous material; 
(F)    Supervision of those who reside in an institutional or custodial environment; or 
(G)    Administration of medication, performance or supervision of surgeries, or other medical treatment requiring professional credentials.

Notice of Reporting Requirements

Employees may report alleged noncompliance with the C.E.P.A.A. within one year to the D.C. Office of Human Rights.

Administrative requirements for recreational and medical marijuana users differ under the new law. Recreational marijuana users are required to exhaust their administrative remedies under the C.E.P.A.A. before bringing private cause of action. Medical marijuana patients are not required to exhaust administrative remedies, but they cannot bring a private cause of action directly to the court if they have initiated an administrative complaint with the D.C. Office of Human Rights alleging the same noncompliance.

Employer Penalties for Noncompliance

If the employer if found to have violated the C.E.P.A.A., the director of the D.C. Office of Human Rights may order the employer to do any of the following:

•    Pay civil penalties, half of which awarded to complainant and half deposited to the General Fund of D.C.; 

o    1–30 employees: up to $1,000 per violation
o    31–99 employees: up to $2,500 per violation
o    100+ employees: up to $5,000 per violation

•    Pay double the civil penalties listed above if the employer is found to be noncompliant in the past year; 
•    Pay the employee’s lost wages; 
•    Undergo training or any other equitable relief to undo the adverse employment action; and 
•    Pay reasonable attorneys’ fees and costs.

In a private cause of action, a court may institute the civil penalties above and:

•    Payment of lost wages; 
•    Payment of compensatory damages; 
•    Equitable relief as appropriate; and 
•    Payment of reasonable attorneys’ fees and costs.

D.C. employers should amend their workplace designations and policies in accordance with the changes mandated by the D.C. Cannabis Employment Protections Amendment Act.

(Summer law clerk Heather Kemp contributed significantly to this post.)