DOT Drug Test Rules After Marijuana's Move to Schedule III
A federal order moved FDA-approved marijuana products to Schedule III. Here is what it changes for your DOT drug test program and what it does not.
DOT Drug Test Rules After Marijuana's Move to Schedule III
A federal order has moved certain marijuana products from Schedule I to Schedule III of the Controlled Substances Act. If you run a DOT drug testing program, nothing about your testing obligations changed. The order, issued April 28, 2026, applies to FDA-approved drug products containing marijuana. It does not rewrite the rules that govern the testing of safety-sensitive employees, and it does not change what happens when a CDL driver tests positive.
What the April 28 order actually changes
On April 28, 2026, the Acting Attorney General issued a final order placing FDA-approved drug products containing marijuana into Schedule III of the Controlled Substances Act (CSA) to meet United States obligations under the Single Convention on Narcotic Drugs, 1961.
The order reaches marijuana as defined in the CSA, marijuana extracts, and delta-9-tetrahydrocannabinol and other compounds derived from the marijuana plant that fall outside the definition of hemp, but only "to the extent" those substances are included in an FDA-approved drug product or are subject to a state-issued license to manufacture, distribute, or dispense marijuana for medical purposes. The order also adds these drugs to the list of substances that may only be imported or exported under a permit, and it sets up an expedited registration process under 21 CFR part 1301 for entities that hold a state medical marijuana license.
This is a reclassification of FDA-approved cannabis-derived products and state-licensed medical marijuana activity. It is not a decision that marijuana itself is now broadly legal, and it is not a change to the workplace drug testing framework that DOT-regulated employers operate under.
Why your DOT drug test program does not change
DOT drug and alcohol testing is governed by 49 CFR Part 40. The procedures, the panel, the cutoff levels, the role of the Medical Review Officer, and the verification process all live in Part 40. A scheduling decision under the Controlled Substances Act does not amend Part 40. Because the testing rule was not changed, the testing program does not change.
The same logic applies to the prohibited-use rules for CDL drivers. Under 49 CFR Part 382, marijuana is a prohibited substance for safety-sensitive drivers, and a verified positive carries the same consequences it did before April 28. The standard that matters for a commercial driver is the safety-sensitive standard, and that standard does not move when a substance shifts schedules. A driver who tests positive for marijuana is still removed from safety-sensitive duties and still must complete the return-to-duty process before resuming those duties.
This distinction — between what is scheduled under the CSA and what is tested under Part 40 — is an important discussion to have with your drivers and safety-sensitive employees.
The questions your drivers will ask and the accurate answers
"Is marijuana legal for me now?" No. The order reclassifies FDA-approved marijuana products and addresses state-licensed medical marijuana activity. It does not legalize recreational marijuana use, and it does not create a federal right to use marijuana. For a safety-sensitive driver, prohibited-use rules are unchanged.
"Does this change my DOT drug test or my random pool?" No. The Part 40 testing panel, cutoffs, and procedures are unchanged, and random selection continues exactly as before.
"I have a state medical marijuana card. Does that protect me?" No. A state medical marijuana card has never been a valid medical explanation for a positive DOT drug test, and that has not changed. The Medical Review Officer cannot accept a state card as a legitimate medical reason for a positive marijuana result.
What is still coming: the June 29 hearing
The April 28 order is separate from the broader proceeding that gets most of the attention: the proposed rescheduling of marijuana itself. That broader matter is moving through an administrative hearing, and the hearing is scheduled to begin June 29, 2026.
Even if the broader proceeding eventually reclassifies marijuana more generally, the same Part 40 logic would apply. A schedule change does not, by itself, amend the DOT testing rule. For the testing program to change, the DOT would have to change Part 40 through its own rulemaking. Until that happens — and there is no such change on the table right now — the testing requirements, the panel, and the consequences for a positive all stand.
What about non-DOT and owner-operator testing?
Many employers run two programs in parallel: a DOT program for safety-sensitive employees and a non-DOT, company policy program for other workers. The April 28 order does not change the DOT side, and it does not require any change to a company-policy program either. A private employer's testing policy is a matter of company policy and applicable state law, not the federal drug schedule. If your company policy program references the DOT panel by design, it continues to operate as written unless you choose to revise it.
Owner-operators face the same bottom line. An owner-operator who holds a CDL and performs safety-sensitive functions is subject to the same Part 382 prohibited-use rules and the same testing program, typically through a consortium or third-party administrator. The reclassification does not loosen those obligations. If anything, the value for an owner-operator is clarity: the rules you operate under did not change, so there aren't any new requirements to manage.
What to do and by when
- Brief supervisors and drivers. Use one clear message: the April 28 order does not change DOT drug testing, the prohibited-use rules, or the consequences of a positive. Get ahead of the rumor before it sets.
- Check your internal FAQ and policy language. If any driver-facing document implies that a state medical card or a schedule change affects testing, correct it now.
- Reaffirm your Part 382 prohibited-use policy. Confirm your written policy still states plainly that marijuana is prohibited for safety-sensitive drivers and explains the return-to-duty path after a positive.
- Document the communication. Note in your drug and alcohol program file that you reviewed the April 28 order, confirmed no Part 40 impact, and communicated the message to the workforce. That record helps in an audit.
- Monitor the June 29 hearing. Assign one person to track the broader rescheduling proceeding and report material developments. Do not modify your panel, policy, or procedures based on a hearing that has not concluded.
- Hold the line with your MRO and collection vendor. Confirm with your Medical Review Officer that verification practice for marijuana positives is unchanged, so a driver's state card or the news cycle does not produce an inconsistent result.
How Foley helps
Foley manages DOT drug and alcohol testing programs end-to-end. When a regulatory headline like this one lands, the most useful response is an accurate, documented message to your workforce and a program that has not drifted from Part 40. Foley can help you confirm your policy and communications are current and audit-ready. See the DOT compliant drug and alcohol testing hub.
Frequently asked questions
Does the April 28 order legalize marijuana?
No. It places FDA-approved drug products containing marijuana into Schedule III and addresses state-licensed medical marijuana activity. It does not legalize recreational use and does not create a federal right to use marijuana.
Does it change DOT drug testing?
No. DOT testing is governed by 49 CFR Part 40, which the order did not amend. The panel, cutoffs, procedures, and Medical Review Officer process are unchanged.
What about a driver with a state medical marijuana card?
A state medical card has never been a valid medical explanation for a DOT positive, and that is still true. The Medical Review Officer cannot accept it as a legitimate medical reason.
Will the June 29 hearing change my program?
Not by itself. The hearing concerns the broader rescheduling of marijuana. Even a schedule change would not amend Part 40; the DOT would have to change its own testing rule for your program to change.
What happens if a CDL driver tests positive for marijuana now?
The same as before. Under 49 CFR Part 382, the driver is removed from safety-sensitive duty and must complete the return-to-duty process, including evaluation by a Substance Abuse Professional, before returning.
Should we update our drug and alcohol policy because of this order?
Only to correct any language that wrongly suggests a schedule change or that a state card affects testing. The substantive prohibited-use and testing rules are unchanged.
Sources
- Federal Register — Schedules of Controlled Substances: Rescheduling of FDA-Approved Products Containing Marijuana From Schedule I to Schedule III (AG Order No. 6754-2026)
- Federal Register — Schedules of Controlled Substances: Rescheduling of Marijuana (hearing notice; hearing begins June 29, 2026)
- 49 CFR Part 40 — Procedures for Transportation Workplace Drug and Alcohol Testing Programs
- 49 CFR Part 382 — Controlled Substances and Alcohol Use and Testing (FMCSA)
- 21 CFR Part 1301 — DEA Registration Requirements