Schedule III Doesn't Mean Safe: What the Federal Marijuana Reclassification Actually Changes for Employers

Nick Hartman:

It's really a big shift that's kind of happening in the testing industry now where, for 40 years, all we were doing was looking for the past use of an illicit substance. Not trying to prove if someone used right now while at work or they're high or under the influence right now. So it's the discernment between past use and recent use that's happening right now that, you know, is impacting employers out there in these multiple different states.

Sarah O'Melia:

Welcome to Don't Get Played, a podcast from Cisive.

This show is for talent acquisition leaders and people managers who care about trust at work. How it's built. How it's measured. And how leaders design systems that hold up when speed, risk, and accountability collide.

I'm Sarah O'Melia, VP of Learning and Employee Communications at Cisive.

Drug testing has been part of the hiring process for decades. But the rules governing it have changed dramatically, and many employers haven't kept up. Marijuana legalization, state-by-state protections, and expanding medical accommodation requirements have turned what used to be a checkbox into a compliance minefield. For a lot of organizations, the policy sitting in their HR file is already out of date.

My guest today is Nick Hartman, Co-Founder and Managing Partner at the Drug Screening Compliance Institute. Nick and his team work with employers to build defensible drug testing programs that hold up under litigation, regulatory scrutiny, and real workplace incidents.

Today we cover a lot of ground. We talk about the state-by-state compliance risks that catch multi-state employers off guard. We discuss the recent federal rescheduling of marijuana and what it means for employers. We get into where medical marijuana accommodation is creating the biggest litigation exposure right now. And we talk through what a modern, defensible drug testing program actually looks like in 2026.

There are employers out there who think their program is fine. But…It might not be.

Let's get started!

Nick, welcome to the podcast.

Nick Hartman:

Thanks very much for having me, Sarah. Appreciate you having me on the podcast here.

Sarah O'Melia:

I'm super excited for you to be here today because there has been recent news about the administration. They just recently moved marijuana from Schedule One to Schedule Three.

So for an HR leader who is reading the headline or trying to understand what that means for them, what is the most important thing they need to understand before they do anything else?

Nick Hartman:

Yeah, it's a great question, Sarah, and certainly the announcement came with a whole lot of fanfare and publicity. But lacked a lot of sustenance as to what it really means to the end using employer. So as of right now, as of this moment, for those that are managing workplace drug and alcohol testing programs, it's status quo for the most part.

There are some exceptions when we talk about state medical marijuana, but we'll dive into that here in the conversation.

Sarah O'Melia:

And there's a lot of conflation happening between rescheduling and legalization. Can you draw that line clearly, and specifically what changed recently and what is still exactly the same?

Nick Hartman:

Yeah, it's an important distinction. So essentially what the executive order did, it removed cannabis products from a Schedule One on the Controlled Substances Act to a Schedule Three. Schedule One substances essentially are illegal substances with no known medical effects and are highly addictive. Schedule Three substances still have some addictive components to it, but also have now known or now recognized medical ailments. So they've slid it down the scale of intoxicating products. And that does have some other implications with regards to, like you mentioned earlier, what's changed?

What stays exactly the same? At a federal level, this is huge for me. Medical marijuana dispensaries, those that are distributing under state laws — it changes some of the tax codes and some other implications. But again, from a workplace perspective, everything is distilled the same as it stands right now.

Sarah O'Melia:

So for employers who have been watching this coming and waiting for a clear signal, is this the signal, or are there still enough open questions to justify a wait and see approach?

Nick Hartman:

I certainly recommend a wait and see approach on this because there were certainly more questions that came from this order than answers. Changes at the federal level is one thing. And if you read the actual DOJ script from start to finish, it says that they're gonna change marijuana from a Schedule One to a Schedule Three in a phased approach. So this is essentially phase one, specifically dealing with products that are FDA approved, which there are a couple. And then all those products that are legal under state medical marijuana programs — all those products essentially have been moved to Schedule Three. But there hasn't been any movement on anything else as of right now.

Sarah O'Melia:

So I'm finding that I want to gain some clarity here because we're talking about having a wait and see approach, right? Having this phased reality of how this is going to be implemented federally and through the states. But the order applies immediately, right? When it comes to FDA approved products and state licensed medical marijuana products, so when it has that language "applies immediately" —

What does that actually mean for an employer running pre-employment tests right now?

Nick Hartman:

Yeah, that's a good point, Sarah. So, meaning immediately means that this is something that was attempted during the Biden administration. The can was kicked down the road to the Trump administration. For those that recognized about four months ago, the Trump administration ordered the DOJ to take immediate action. Again, that took four months or so before we saw some of the recent news where they did move it from a Schedule One to Schedule Three, but that didn't legalize marijuana at the federal level entirely.

Again, the specific move was related to medical marijuana, opening up research and studies on the substance, and then essentially adopting state medical marijuana programs as the normal for how they're gonna proceed with addressing medical marijuana. So there is something that is very important to note with regards to state medical marijuana laws for employers and how they're crafting their policies, and this is likely something they've considered already or should be seriously considering.

'Cause you have to understand that at the state level, states have medical marijuana laws. Nearly 40 states have different medical marijuana laws authorizing its use for various medical purposes. And some of those states have big time limitations and protections for employees that lawfully use medical cannabis, while some states have no protection.

So understanding what your state medical marijuana laws are and what limitations might exist is incredibly important from a policy perspective. Again, that was in place already, but it's a, I guess it's a great reminder for employers to go look at what those rules are and make sure that their pre-employment and even post-employment screening programs comply with those laws.

Because there are states, just to divulge, that may limit what substance you're actually testing for — Delta Nine versus marijuana metabolites. There are states that prohibit employers from discriminating against someone's status as an authorized medical marijuana user at the state level. And there are also states that limit the discipline that employers can take based off of a positive drug test result for those that, again, are authorized to use medical cannabis at a state level.

So that's holding a lot more weight than ever before.

Sarah O'Melia:

Yeah, I wanna delve into more of the state specific legislation that you mentioned, because some states have this high risk jurisdiction for employers that are running traditional drug screening programs. So where do you see the most exposure created by this specific rescheduling?

Nick Hartman:

Yeah, really it's on what people may not realize, but it's on like state disability, state discrimination, human rights laws. You may not know that every state already has a Controlled Substances Act, and some states have already moved marijuana off the Schedule One or have rescheduled it essentially at a state level to allow the medical use. The ADA, the Americans with Disabilities Act, is a federal protection program. So previously that had no bearing on medical marijuana programs and still doesn't today realistically, except that could change very soon.

What we have been seeing on the litigation side of our house is an increase in case law against employers for discriminating against someone's underlying medical condition — the reason for which they were authorized to use medical marijuana under state law. So if you're an employer and you're hiring people right now, testing for marijuana, you should absolutely have in place some kind of mechanism or program to define what you have as a job description.

Specifically defining what safety sensitive is, but also understand what you can screen for, what you can't screen for in those instances. And then I guess most importantly, what disciplines or adverse employment action you can take in those situations. There's case law out there right now where employees are being denied employment, they're taking their suit through the courts, and they're finding protections under state human rights laws or disability discrimination laws for those employers that didn't consider the underlying medical conditions, again, for which they're using medical cannabis.

So it'd be super smart for employers to be prepared before taking any adverse employment action. To take a look at the job description, take a look at what the employee's capabilities are, and have that interactive conversation with that employee saying, hey, you're going into a potentially safety sensitive role. We understand you're using medical cannabis. Can you take this job description back to your certifying medical physician, the one that authorized your medical cannabis use, and have them sign off that you can safely perform the essential functions of this job safely under their care, or not? Or if we need to look at maybe reasonably accommodating you in a different position.

That step is incredibly important with regards to avoiding any potential human rights or disability discrimination suits.

Sarah O'Melia:

So with all of this sort of change and knowing that it has the potential in this phased approach to change more, if an HR or TA leader is listening to this and thinking, I have no idea whether our policy is still legally defensible after the news — what is the first thing they should do? What does that review look like, and who needs to be in that room?

Nick Hartman:

Yeah, another great question, Sarah. So it's certainly the HR manager, the designated employer representative, the subject matter expert that's running the drug screening program, and of course your legal team or legal resource — starting with your core company policy. If you're a single state employer, you simply need to understand what the rules are, the laws are, and the case law is in that state with regards to the lawful use of lawful products like cannabis for adult use, or more importantly, for medical marijuana laws.

If you're a multi-state employer, obviously this task gets a little bit more complicated, 'cause now you're having to look at the laws in each of the states where you have employees conducting work. Especially for employers with remote workforces, you have to consider those laws and those states and maybe even municipalities that are limiting your policy and your program. So it really is a deep dive, dissecting by state and potentially by jurisdiction, to make sure that you understand what the limitations are and make sure that it's, of course, addressed in your policy and your internal procedures.

Sarah O'Melia:

Interesting. And you know, we mentioned this a couple times, but it almost feels like there might be a bit of a moving target, right? With this phased approach, with changes with scheduling, and there's been a June hearing scheduled to examine broader rescheduling. So what should our TA and HR teams, especially in a federally or highly regulated industry, be doing between now and then?

Nick Hartman:

Yeah, it's definitely, definitely staying attuned with the updates. As you mentioned, there's gonna be a pretty big hearing on the 29th of June that essentially readdresses the situation and figures out what's the next phase for the lawful use of cannabis, and more so on the, I think the personal adult use side and how to fold it in.

But you brought up a great point for federally regulated employers. There was a whole lot of confusion there, whether or not marijuana now is part of a federal drug testing program, and the answer to that question is nothing has changed. Those that are in federally regulated positions under the Department of Transportation still must continue to screen for marijuana. Whether or not that changes is yet to be heard. I do know that the Trump administration has been in talks with the Department of Transportation, those rule makers at the federal level, to make sure that they're considered in this because it does have great downstream impacts to federally regulated testing programs.

As you can imagine, I don't think anybody wants someone to be under the influence or have recently used marijuana if they're about to fly an airplane or drive a train or a school bus full of children. There are certainly safety sensitive concerns there. But as the law is written right now, which causes the confusion, is that Health and Human Services, or HHS, mandates workplace drug testing programs for DOT regulated testing. And right now the HHS limits DOT drug testing to substances one and two on the Controlled Substances Act. So with this change, moving it to a Schedule Three caused great confusion and anxiety amongst the federal regulators and those that are managing federal DOT programs, because it creates some uncertainty. And without a clear and distinct safety sensitive carve out exempting federally testing programs, you know, that it creates that confusion and that uncertainty.

Hopefully come June after that hearing, we'll get some more clarity. But both the DOT DAPs and the rest of those have said that it's business as usual for federal drug testing until they say otherwise.

Sarah O'Melia:

So which states right now represent the most significant compliance risk for employers, and what's making them so tricky?

Nick Hartman:

Yeah. If you talk about drug testing in general, states that have mandatory drug testing laws for employers that wish to conduct drug testing — there's a few out there like the state of Maine, the state of Minnesota, California, Oklahoma, Iowa, and a few that have very, very specific rules that employers must comply with. All the way from requiring you to have a company policy, what components or details are covered within that policy, how the program is implemented, what methodologies you can use, what specimen methods can be used, and most importantly, what disciplines can be imposed on those that violate their policy.

I mean, you may not know that Minnesota has a drug testing law at the state level where you can't terminate somebody the first time they test positive for a drug. You actually have to offer them the opportunity to go through a treatment program and return to work if they want to. It catches employers all the time. Or the state of Maine — you can't use breath alcohol as a methodology, or breath, excuse me, for a methodology for screening for alcohol use, which seems very commonplace in workplace drug and alcohol testing. But the state has a limitation requiring the use of blood. And there are other states out there that have something very similar.

Sarah O'Melia:

So just curious, what's the strangest or most counterintuitive state law situation you've encountered in your work? The kind that would genuinely surprise most HR teams.

Nick Hartman:

I call 'em the head scratcher laws, and there's quite a few of 'em out there. I'll go back and refer to Minnesota and Maine and some others that don't allow testing via alcohol via breath, which again, seems like it's 30 years old and out of date. And so hopefully they can go back and update those laws.

But there's a law in Virginia that specifically prohibits employers from discriminating against someone's medical use of cannabidiol, or CBD. Well, in employment drug testing, we don't test for CBD, so an employer will never get a positive drug test for cannabidiol. I think it's important to have the protection there, 'cause those that lawfully use cannabidiol products or low dose THC oils for medical reasons should have some kind of protections. But it just seemed silly that the state went on to make a law like that that will actually never apply in practical testing purposes.

But we have a whole list of different state oddities that are out there. There's some states that prohibit testing in post-accident situations where they have to require signs and symptoms, or a supervisor to have reasonable suspicion in post-accident situations in order for them to test. So there's things that kind of go against industry best practices, and some might say go against common sense, that are out there.

Sarah O'Melia:

So when we go into the talent acquisition space, are there states where an employer's existing drug-free workplace policy could actually be working against them in a legal sense?

Nick Hartman:

Absolutely. Especially if you consider the changes that have happened with marijuana use. You mentioned protections for the off-duty use of marijuana. There are states like California, or where I'm sitting today in Washington, where over the last three or four years laws have been implemented that now restrict an employer from what methodologies they can use for testing, what substances are used for testing, and most importantly, what they consider a policy violation.

For example, in California and here where I'm at in Washington, employers cannot take adverse employment action based off a positive drug test for marijuana. What might have seemed commonplace in years past just doesn't fly anymore in those two states and several other states that have very similar laws. Essentially what the law says is that an employer can only take adverse employment action if they have found that person to have used Delta Nine THC. And they can't take adverse employment action based on any non-impairing cannabis metabolites.

So with urine drug testing, it's important to note that we can't identify Delta Nine in urine drug testing because of how it digests in the body. The only methodology that exists today to determine that would be through oral fluid testing, where you can identify the primary psychoactive substance of cannabis use, which is Delta Nine THC, and not the past metabolites.

So it's really a big shift that's kind of happening in the testing industry now where, for 40 years, all we were doing was looking for the past use of an illicit substance. Not trying to prove if someone used right now while at work or they're high or under the influence right now. So it's the discernment between past use and recent use that's happening right now that, you know, is impacting employers out there in these multiple different states.

Sarah O'Melia:

Continuing with the TA thread, how much of the conversation with employers has shifted from pure compliance to talent competitiveness? So something like, if we test for marijuana, we can't fill our roles, or if we test for marijuana, we can't find the top talent.

Nick Hartman:

Yeah, we've certainly heard that question a lot and understand employers' concerns, especially back in the COVID days. We had a labor crisis where people, you know, couldn't find anybody to fill a lot of these important jobs, and I definitely hear the concern, understand the concern.

But I really think there's a balance that can be struck here with making sure you maintain a safe and drug-free workforce, but also don't lose out on a candidate or a client or a good employee that's actually contributing positively to the company. There is no law out there that says you have to terminate somebody because they failed a drug test. There's no law out there that dictates what you do essentially with somebody. That decision at the end of the day comes down to the employer.

There are certainly opportunities for maybe reassignment or accommodations under a position that's not safety or security sensitive. There is absolutely the idea and philosophy of a second chance agreement, where someone makes a mistake and they can agree to moving forward, continuing to stay gainfully employed, but to agree to remain drug-free so that they are not an employment risk. There's several different ways to get crafty, I think, here without having to blindly just terminate somebody because they failed a drug test.

So it's time to get creative and start thinking outside the box on some of those solutions.

Sarah O'Melia:

Interesting. And I love how technical it is, right? Hearing you talk about not just the legal sense, but the standard sense, and then there's the policies, and then there's the societal, and they all work together. So where are you seeing the mistakes that have the highest stakes?

So I'm thinking about pre-employment testing, post-accident testing, random testing. Where is the legal exposure most acute?

Nick Hartman:

Yeah, that's a great question. 'Cause a lot of the laws outside of the mandatory laws that dictate what you can and can't do — so that, I guess, that would be low hanging fruit — making sure you're not using a specimen methodology, making sure you're using an MRO, utilizing lab confirmation testing. All of those things would be very standard, I think, to make sure that you have a compliant and defensible program.

Where I think a lot of the risk is, is on what type of discipline you're imposing based on a policy violation. And I think I mentioned that earlier — that in some states that prohibit employers from taking adverse employment action based off off-duty use, or off of a non-impairing cannabis metabolite, which is, again, a new legal word that's weaving its way into legislation in many different states.

Sarah O'Melia:

So let's say I want to update my company's policy to be more permissive. What are the legal and operational guardrails I need to put in place first?

Nick Hartman:

Yeah, that's a great question as well. So I would start with taking a look at what you have in place today. Making sure you have the resources and availability to go look at what the state statutes, regulations, and case law are. What are the rules that apply to your testing program specifically — forget about all the noise that happens in the headlines that are out there.

'Cause you'll hear a lot of it and it'll feel like the sky is falling. But take a look at your specific program and the rules that apply to you in each of the states or jurisdictions that apply, and make sure that your policy complies with those different rules. It's really, you know, these rules and regulations will end up being your blueprint for success.

Sarah O'Melia:

So if they're going through this process, what role should outside expertise — right, like legal counsel, compliance partners — play in this? And what's the risk of trying to DIY it?

Nick Hartman:

Yeah, I mean, we certainly depend on those that study the law and understand the law and interpret the law to help us out, whether it's your own internal or outside legal counsel, whether it's an industry consultant. Definitely utilize the resources that are out there. If you can imagine, depending on your role, you know, an HR expert or safety expert that wears multiple hats throughout the day — it's just almost a near impossibility to stay up to date with all these different changes, let alone understand and interpret 'em, and then make sure you make the changes within your program. So using that outside help, those subject matter experts that are staying on top of these growing issues, is certainly important.

I absolutely would throw a red flag, or a caution flag at the very least, to those that are trying to DIY this themselves or get on the latest AI platform to have them develop a policy. This is super complicated stuff. If you think about it, you have to take a state statute, a state regulation, maybe even a city ordinance, maybe a specific industry rule, a federal rule, and blend those all together to the specifics of your program and make sure that you have end-to-end compliance or have a defensible screening program. So, DIYing it, having a templated policy where you just plug your name on it and have some people sign off on it — it's an incredible amount of risk.

Sarah O'Melia:

And given how fast testing policies and the law is moving, how often should employers be reviewing and updating their drug testing policies? And you know, we kind of talked about AI there — what role would AI play when we are reviewing and updating those policies?

Nick Hartman:

Yeah, a fascinating question. It had been commonplace before where you draft a really good policy, you implement it, and then it gets tucked in a file somewhere in HR and doesn't see the light of day until something happens. Well, that's certainly not a great plan going forward.

And I really think an annual review of your policy is absolutely appropriate. Potentially staying ahead of news headlines during election years, or when ballot initiatives come through in your state that could impact your program — following those closely and seeing what impacts they may have to your program or requiring a policy update. But yeah, you really can't afford to not be looking at that on a consistent basis.

Sarah O'Melia:

And if we could wipe the board clean and create it from scratch, what does a modern defensible drug testing program look like in 2026? And what are those non-negotiables?

Nick Hartman:

Yeah, I think it's gonna be different for every employer out there 'cause they're the ones that are gonna understand their different workplace risks and requirements and obviously applicability. But typically what we recommend is you start with a core company policy, or the kitchen sink, if you will. If there were no rules, this is how we want our program to run. And then address federal law, address federal grants or contractors, address state specific or local ordinance laws via a state policy addendum that now defines what those limitations are — whether it impacts testing programs, whether it impacts the discipline you can impose.

And that way it's super organized, it can be disseminated by state, and you're not sending your managers and supervisors a hundred page document they have to read through and then interpret and then apply to their program. They have clear and concise guidance on the rules that they need to follow and that need to be enforced, that are specific to that state.

Sarah O'Melia:

That is excellent. So to wrap this up, Nick, what's one thing you wish more employers understood about drug testing compliance that would save them the most pain?

Nick Hartman:

A lot of calls we get are more reaction — something happened, somebody walked in an issue, something came across someone's desk. They're panicking and trying to figure out what to do so that they don't make the wrong mistakes. So, having a policy in place is one thing.

We talked a lot about policy. Having comprehensive procedures, or standard operating procedures, established is super key. Making sure your employees — those that you're entrusting to defend your workplace policy — understand the rules of the policy, understand the procedures they need to follow so that they don't make a mistake, especially in the heat of a moment when something's happening. Make sure that they're trained on that.

And also the last little gem I'll add is reasonable suspicion training. Make sure you provide your managers and supervisors with training on how to recognize the signs and symptoms of workplace substance use. It's the best insurance policy, the best investment you can make in your staff with regards to workplace drug and alcohol safety programs today. And then making sure they have the way to document that situation from start to finish, but most importantly, how to confidently act in those situations. I see more often than not that employees in those situations are scared to take action 'cause they don't know if they're doing the right thing and they're scared of liability, when in reality there's actually more liability for those that don't take action in those situations.

Sarah O'Melia:

Absolutely. And you're absolutely right, right? When it comes to policy, that's one thing, but it has to be applicable. It has to be a living, breathing thing within your organization where people know what to do with it.

Nick Hartman:

I totally agree.

Sarah O'Melia:

Oh, well this has been so incredibly informative. Thank you so much for joining us today, Nick.

Nick Hartman:

Appreciate you guys having me.

Sarah O'Melia:

Drug testing compliance is not a one-time project. It is an ongoing responsibility, and most employers do not find that out until something goes wrong.

A few things worth carrying out of this conversation. If you operate across multiple states, a single national zero-tolerance policy is no longer viable. The patchwork of state laws around marijuana, medical accommodations, and off-duty protections means your policy has to account for where your people actually work.

Reasonable suspicion training is one of the highest-value investments you can make in your managers. The cost of inaction in a workplace substance situation is almost always higher than the cost of acting carefully. And annual policy review is not optional anymore. The legal landscape is moving fast enough that what was compliant a couple of years ago may already be a liability.

Thanks to Nick for joining us and bringing real clarity to a genuinely complicated topic.

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We'll see you next time. And remember, in the meantime... don't get played.