DEA Reclassifying Marijuana

The United States Drug Enforcement Agency (DEA) has taken a major step toward reclassifying cannabis under the Controlled Substance Act. Last week, they published a Notice of Proposed Rulemaking that proposes moving the drug from Schedule I to a Schedule III. The Department is soliciting public comment on the proposal until July 22, 2024.

The United States Department of Health and Human Services (HHS) analyzed scientific research of cannabis to compose data revealing if cannabis encompassed medical/health benefits that should be acknowledged at the Federal level. Through their findings, they suggested to the DEA around August of last year (2023) that this drug should be recognized for its medical benefits at the Federal level which would consist of rescheduling it through the Controlled Substances Act, from a Schedule I which consists of drugs such as heroin that provide no medical use, and have a high potential for abuse, to a Schedule III which includes drugs such as Tylenol with Codeine that do provide medical use and have a moderate to low potential for abuse.

This rescheduling could dictate IF or WHEN DoT mandated employers can test for cannabis within their workforce since the reclassifying of cannabis to a Schedule III would immediately strip this drug from the Federal Department of Transportation’s drug testing panel. Meaning, that all of the Federal Department of Transportation administrations would no longer be able to test for marijuana (e.g., pilots, federal motor carriers, railroad workers, etc.) With DoT protocols potentially being redefined, others tend to follow suit in referencing DoT guidelines as the “gold shelf” standard; therefore, it could be expected to see even non-DoT employers and providers change their testing specs (e.g., DFSP).

Interesting enough, there were attempts to reclassify cannabis back in 2016 whereas the DEA denied the petitions, and the Department of Health and Human Services (HHS) concurred with the DEA that it should remain Schedule I since they found that it had a high potential for abuse, did not have accepted medical use, and there was a “lack of accepted safety for use of marijuana under medical supervision.” Now here we are 8 years later, at the request of the United States Department of Justice (DOJ), reanalyzing the available medical and scientific data, and this time concluded that marijuana “has potential for less abuse than the drugs or other substances in schedules I and II; that marijuana has a currently accepted medical use (CAMU); and that the abuse of marijuana may lead to moderate or low physical dependence or high psychological dependence.”

If you’re feeling uneasy about your pilot flying “high” no pun intended… you’re not alone. The DEA has currently opened the floor for public comment regarding this proposal, and several National Associations focused on the Drug Free Workplace are advocating for a Safety Carve Out which would mean that employees carrying out safety sensitive functions or occupying safety sensitive positions would be exempt from this reclassification and would still be tested for marijuana.

WHAT NOW? You can review the proposed rule for further information and as mentioned, the DEA has allocated a 60-day period ending on July 22, 2024 for anyone interested to submit their comments regarding this proposal, so take some time to discuss this and compile your own list of comments! Lastly, be sure to open up your drug and alcohol policies to review how safety sensitive functions are defined in your policy and what positions are considered safety sensitive. And don’t forget, if you have any questions or hesitations reach out to Working Partners® and we will talk through it.