DOT Drug Testing After DEA's Marijuana Rescheduling: What Changes for Fleets in 2026

On April 28, 2026, the Drug Enforcement Administration placed FDA-approved drug products containing marijuana into Schedule III of the Controlled Substances Act. The final rule was issued by the Acting Attorney General as a final order and took effect immediately. Drivers and employers are already asking whether this changes the DOT drug test. The short answer is no — at least not yet, and not in the way most people expect.

What the DEA's April 28 final rule actually does

The final rule, published in the Federal Register on April 28, 2026, places drug products containing marijuana approved by the Food and Drug Administration into Schedule III of the Controlled Substances Act. It also adds those drugs to the list of substances that may only be imported or exported under permit, and it establishes an expedited federal registration process under 21 CFR Part 1301 for entities holding state medical marijuana licenses. The full text is available at FR-2026-08176.

The rule explicitly applies to marijuana, marijuana extracts, delta-9-tetrahydrocannabinol, and other compounds derived from the marijuana plant — but only where 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. Recreational marijuana, hemp under the federal definition, and marijuana that is neither FDA-approved nor state-licensed for medical use are not addressed by this rule. Those remain where they were before April 28.

Published the same day as the final rule, DEA also issued a notice of hearing for the broader proposed rescheduling of marijuana itself — a separate rulemaking, originally proposed in May 2024, that would move marijuana as a whole from Schedule I to Schedule III. The hearing begins June 29, 2026. That broader rescheduling is not finalized. Treat it as in process, not in force.

What DEA's final rule does NOT do (the Part 40 boundary)

This is the section that matters most to a fleet compliance officer.

The Department of Transportation's drug and alcohol testing program — the regulation that governs every DOT-required pre-employment, random, post-accident, reasonable-suspicion, return-to-duty, and follow-up test — lives in 49 CFR Part 40. Part 40 is administered by the Office of Drug and Alcohol Policy and Compliance (ODAPC), and it is enforced through each modal administration's specific rule (Part 382 for FMCSA, Part 120 for FAA, Part 219 for FRA, Part 199 for PHMSA, Part 655 for FTA). DEA does not write Part 40, and a change in CSA scheduling does not by itself change Part 40.

Specifically, Part 40 treats a confirmed marijuana positive — that is, a urine specimen with a verified positive result for THC metabolite at or above the cutoff — as a violation regardless of the substance's CSA schedule. There is no exception in Part 40 for an FDA-approved Schedule III marijuana product, no exception for a state medical marijuana card, and no exception for any product that crosses the federal-state seam. The Medical Review Officer (MRO) verification process explicitly excludes a state medical marijuana authorization as a legitimate medical explanation for a positive test. The MRO regulation has not changed.

What this means in practice:

• A driver who tests positive for marijuana under a DOT-required test is still in violation of Part 382 (or whichever Part applies to their mode), regardless of whether they used an FDA-approved Schedule III marijuana product or a state-licensed medical product.
• The MRO is still required by Part 40 to verify that the result is positive.
• The employer is still required to immediately remove the driver from safety-sensitive function and refer them to a Substance Abuse Professional (SAP) under the return-to-duty framework.
• The Drug & Alcohol Clearinghouse reporting obligation is unchanged. A verified marijuana positive remains a reportable violation.

Until DOT formally amends Part 40 — which would require its own notice-and-comment rulemaking — the federal testing framework treats marijuana the way it has since 1991.

How DOT drug testing rules are set, and why they're moving slower than CSA scheduling

The DOT testing program is anchored in the Omnibus Transportation Employee Testing Act of 1991 and is implemented through Part 40. Substances and cutoffs are coordinated with the Department of Health and Human Services through the Mandatory Guidelines for Federal Workplace Drug Testing Programs. Any change to which substances are tested, or to the cutoff levels, or to how MROs handle a positive, is set by ODAPC after coordination with HHS.

That coordination is deliberate and slow. Even when CSA scheduling moves, ODAPC has historically waited for HHS guideline updates and for its own evaluation of operational impact before changing Part 40. Schedule III status under DEA is not, by itself, a trigger for Part 40 to move. The April 28 rule does not direct DOT to do anything, and DOT has not announced any change.

Translation for the compliance team: do not rebuild your drug-testing policy this week, do not retrain your supervisors on a "new" Part 40 standard, and do not soften your driver communications. There is nothing in the April 28 final rule that requires or permits any of that.

Who this affects — drivers, employers, MROs, SAPs, insurance partners

Drivers will ask: "Can I use a state medical marijuana product now?" The answer is no. State medical marijuana use is not a defense to a DOT-required positive, and the MRO will not accept it as a legitimate medical explanation. Use any marijuana product — FDA-approved Schedule III, state-licensed medical, or otherwise — and a confirmed positive ends safety-sensitive duty.

Safety managers and DOT compliance officers will ask: "Do I need to update our policy or our supervisor training?" The answer is no, with one practical addition: drivers and supervisors are reading headlines that suggest marijuana is now "legal," and the company's communication has to land cleanly. Most compliance teams will want a one-page memo that drivers can read and a five-minute talking point for supervisors at the next safety meeting.

Medical Review Officers and Substance Abuse Professionals will see questions about the verification process and the return-to-duty path. The verification process has not changed. Neither has the return-to-duty framework: evaluation by a SAP, education and/or treatment as recommended, follow-up testing for at least 12 months and as long as 60 months after return to duty, all under Part 40 Subpart O.

Insurance partners and brokers who underwrite fleets will ask whether the DEA action changes the driver risk pool. It does not change the regulatory testing framework, and underwriters who have been pricing marijuana risk on the assumption that DOT testing protocols hold should continue to do so. The question of whether Part 40 will eventually change is real but separate, and it will move through DOT rulemaking with its own comment period.

What to do and by when

1. This week: Issue a brief written communication to drivers reminding them that DOT drug testing rules under 49 CFR Part 40 have not changed, that state medical marijuana use is not a defense to a positive test, and that a confirmed marijuana positive remains a violation that triggers immediate removal from safety-sensitive duty. Two paragraphs is enough. Confirm the same point to dispatch supervisors so the floor message is consistent.
2. Within 30 days: Review your written drug and alcohol policy. If your policy quotes outdated CSA-scheduling language for marijuana, update the citation. If your policy ties consequences to "Schedule I status," reword it to tie to "a verified positive under 49 CFR Part 40" — that language survives any future scheduling change. Have your MRO confirm their verification protocol is current.
3. Through June 29, 2026: Monitor the DEA hearing on the broader marijuana rescheduling proposal. The hearing begins June 29 and addresses the full Schedule I → Schedule III move (not just FDA-approved products). The hearing record will signal what DEA, HHS, and ODAPC may do next. The hearing notice is published at FR-2026-08177.
4. Watch for ODAPC guidance. If DOT decides to revisit Part 40 in light of any future broader rescheduling, ODAPC will publish notice in the Federal Register with a comment period. There is no such notice today. Subscribe your compliance team to the ODAPC update list and to the Drug & Alcohol Clearinghouse announcement feed.
5. Document your decision. If your fleet operates in a state where medical marijuana is legal and a driver asks for accommodation, document the conversation, document that your policy and DOT regulations require denial of that accommodation for safety-sensitive function, and document that the denial is consistent with 49 CFR Part 40. The Department of Labor, Equal Employment Opportunity Commission, and most state agencies have recognized DOT testing requirements as a defense to disability- and state-marijuana-law accommodation claims, but you want the paper trail.
6. Coordinate with your insurance partner. If your underwriter or broker has asked about your marijuana policy in the last twelve months, send them a copy of the updated policy plus a one-paragraph note confirming that your testing protocols have not changed in response to the April 28 DEA rule. Underwriters will appreciate the proactive note.
7. Plan the supervisor refresher. Reasonable-suspicion training under Part 382.603 covers signs and symptoms of alcohol misuse and controlled-substance use. The training does not need to change; the talking points around it might. Use the next scheduled session to address the news cycle and reinforce the company's policy.

How Foley helps

Foley offers DOT-compliant drug and alcohol testing programs, including consortium pool management, MRO services, return-to-duty case coordination with Substance Abuse Professionals, and Drug & Alcohol Clearinghouse reporting and queries. When the regulatory environment around drug testing shifts, the value of having a single program partner who can answer the policy questions, manage the testing chain, and maintain the records is immediate and concrete. If the April 28 rule has triggered driver questions or board-level questions in your organization, our compliance team can help you confirm if your testing protocols remain compliant under Part 40.

Frequently asked questions

Does the April 28 DEA rule change the random drug testing pool?

No. The substances tested, the cutoffs, and the random selection rate under Part 40 and Part 382 are unchanged. Randoms continue to test for marijuana metabolite at the same threshold.

What about a state medical marijuana card — is that a defense to a positive test?

No. The Medical Review Officer regulation in Part 40 explicitly excludes a state medical marijuana authorization as a legitimate medical explanation for a verified positive. The driver's card is irrelevant to the MRO determination.

Will return-to-duty change?

No. The Substance Abuse Professional evaluation, the education or treatment, and the follow-up testing schedule under Part 40 Subpart O all continue as before. A verified marijuana positive triggers the same return-to-duty obligations.

Does this affect Drug & Alcohol Clearinghouse reporting?

No. A verified marijuana positive is a reportable violation under 49 CFR Part 382 Subpart G, and the employer query and reporting obligations are unchanged. The Clearinghouse continues to operate as it has since 2020.

If a driver was prescribed an FDA-approved Schedule III marijuana product, does that protect them?

Not under Part 40 as currently written. A prescription does not create a legitimate medical explanation for a marijuana positive in DOT testing. If DOT later amends Part 40 to recognize specific FDA-approved Schedule III prescriptions, the rule will say so explicitly. There is no such rule today.

Do we need to retrain supervisors on reasonable-suspicion testing?

Not because of this rule. Reasonable-suspicion training requirements under Part 382.603 are unchanged. Talking points may be useful for the next scheduled refresher to address driver questions, but the underlying training program does not need to be rebuilt.

What should we be watching for next?

Two things. First, the DEA hearing on the broader marijuana rescheduling beginning June 29, 2026 — this is where the bigger Schedule I to Schedule III move sits. Second, any future ODAPC notice in the Federal Register addressing Part 40.

Sources

• FR-2026-08176 — Final Rule: Rescheduling of FDA-Approved Marijuana Products to Schedule III
• FR-2026-08177 — Notice of Hearing: Rescheduling of Marijuana (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)
• Office of Drug and Alcohol Policy and Compliance (ODAPC)
• FMCSA Drug & Alcohol Clearinghouse