DOJ shifts approach to medical marijuana

In a move with potentially significant implications for employers, the Department of Justice (DOJ) recently issued an an order that reclassifies certain medical marijuana products as Schedule III controlled substances.

The order applies to medical marijuana products that:

• Have received approval from the Food and Drug Administration (FDA); or
• Are subject to state medical marijuana licensing.

Marijuana has long been classified as a Schedule I controlled substance, which is defined as a drug with no currently accepted medical use and a high potential for abuse. Schedule III drugs, by contrast, are defined as drugs with a moderate to low potential for physical and psychological dependence. (Recreational marijuana remains a Schedule I controlled substance under federal law.)

Although the order does not legalize marijuana on the federal level, the federal recognition of the accepted medical use of certain medical marijuana products is likely to shift employers’ approaches to drug testing, reasonable accommodation under the Americans with Disabilities Act (ADA) and other workplace policies. Without the justification of a Schedule I classification, employers will need to ensure that their policies surrounding medical marijuana focus on preventing on-the-job impairment, ensuring workplace safety and advancing other important business needs.

Currently, 44 states have legalized medical marijuana, and 25 states have legalized the adult use of recreational marijuana. State laws vary in the level of employment protections they provide to medical and recreational marijuana users. The DOJ order does not alter or override these state laws.