Marijuana Rescheduled to Schedule III: What This Means for DOT Drug Testing (Spoiler: Less Than You Think)

On April 28, 2026, the Drug Enforcement Administration placed FDA-approved drug products containing marijuana, along with marijuana subject to state-issued medical marijuana licenses, into Schedule III of the Controlled Substances Act. The news ran in every trucking trade outlet within forty-eight hours, and drivers began calling safety managers with the same question: "Is my marijuana use OK now?" The short answer for any safety-sensitive employer covered by federal drug testing rules is no. DEA scheduling changed for narrow categories of marijuana-related products and state-licensed medical marijuana activity. The DOT drug test framework did not. This piece walks through exactly what the DEA action does, what it does not do, and what an FMCSA-regulated employer needs to communicate this month.

What DEA actually did on April 28

The action lives in the Federal Register at FR-2026-08176, "Schedules of Controlled Substances: Rescheduling of Food and Drug Administration Approved Products Containing Marijuana From Schedule I to Schedule III," issued as a Final Order by the Acting Attorney General under Department of Justice authority. The order places FDA-approved drug products containing marijuana into Schedule III of the Controlled Substances Act.

The order is grounded in DEA's view of the United States' obligations under the Single Convention on Narcotic Drugs of 1961 and the Controlled Substances Act. DEA explains that the CSA is the primary way the United States carries out those treaty obligations, and that the rule is designed to place covered products in the schedule DEA views as appropriate while maintaining required controls, including import/export permit requirements.

The rescheduling applies to two broad categories described in the Final Order. The first is FDA-approved drug products containing marijuana, including marijuana, marijuana extracts, delta-9-tetrahydrocannabinol, and other marijuana-derived compounds outside the definition of hemp, to the extent they are included in an FDA-approved drug product. The second is marijuana activity operating within the state-issued medical marijuana licensing framework described in the DEA Final Order and associated federal registration process. DEA also established an expedited registration process under 21 CFR Part 1301 for entities holding state medical marijuana licenses.

The Final Order was published in parallel with a separate Federal Register notice (FR-2026-08177) announcing a hearing on the broader proposed rescheduling of marijuana itself — not just FDA-approved products. That hearing is scheduled to begin June 29, 2026. The April 28 Final Order is the narrow, immediately effective action; the broader rescheduling of all marijuana remains in administrative process.

What this is NOT

Three things did not happen on April 28, and the distinction matters for every safety manager fielding driver questions this month.

First, this was not a blanket rescheduling of all marijuana. The April 28 Final Order applies to FDA-approved drug products containing marijuana and marijuana subject to state-issued medical marijuana licenses. Marijuana outside those categories — including unlicensed bulk marijuana and marijuana not incorporated into an FDA-approved product or covered by a state medical marijuana license — remains subject to Schedule I controls. DEA separately announced a hearing on the broader proposed rule to transfer marijuana generally from Schedule I to Schedule III, beginning June 29, 2026.

Second, the order does not make state recreational marijuana federally legal, and it does not remove all federal controls from state medical marijuana activity. It creates a federal Schedule III framework for marijuana subject to state-issued medical marijuana licenses, including an expedited DEA registration process, while preserving federal registration, recordkeeping, permit, and other controlled-substance requirements.

Third — and this is the load-bearing point for FMCSA-regulated employers — 49 CFR Part 40, the DOT drug and alcohol testing framework, was not amended. Part 40 governs the entire workplace drug testing program for safety-sensitive transportation workers. It defines what substances are tested, how positives are evaluated, what an employer must do with a verified positive result, and what the return-to-duty process looks like. None of that was touched by the DEA Final Order. A driver who tests positive for marijuana under DOT testing today is in the same regulatory posture as a driver who tested positive last week.

Who this affects

The audiences who need to understand the distinction this month are the same audiences who get the calls when news like this lands.

Drivers are the first to ask, and they ask in informal channels — to dispatchers, to peers in the truck stop, to whoever picks up the phone at the carrier. A driver hearing "marijuana is Schedule III now" is hearing that on the assumption it means something has changed for them. The accurate response, which a driver may not get from a casual conversation, is that under federal drug and alcohol testing for safety-sensitive positions, marijuana use remains a violation regardless of state law, regardless of medical-marijuana cards, and regardless of the April 28 rescheduling.

Safety managers and DOT compliance officers receive the next round of questions, including the harder ones: "What about a driver with a state medical marijuana card?" and "What if a driver is prescribed an FDA-approved marijuana product like Epidiolex?" Those questions have specific answers under Part 40 and the Department of Transportation's Office of Drug and Alcohol Policy and Compliance guidance, and the answers do not depend on the April 28 scheduling change.

Medical Review Officers (MROs) — the licensed physicians who review verified positive drug test results — operate under defined Part 40 discretion. An MRO evaluates whether there is a legitimate medical explanation for a positive result. The DEA scheduling change does not expand MRO discretion. A positive for THC remains a positive that an MRO verifies and reports.

Substance Abuse Professionals (SAPs), responsible for evaluations and return-to-duty recommendations, work within the Part 40 framework. The return-to-duty process — assessment, education or treatment, follow-up testing — is unchanged.

Insurance partners and brokers will field the question from carriers and from underwriting: "Does this affect our loss ratios or our underwriting?" The answer is that the DOT testing framework, which is the data feed underwriters care about, did not change.

HR and legal partners inside larger fleets need the same information packaged for their own audience — workforce and recruiting communications, employee handbook language, and state-by-state policy alignment for any non-DOT positions on the staff.

What does NOT change under DOT drug testing

The clearest way to communicate the April 28 action to a driver workforce is to enumerate what is unchanged.

49 CFR Part 40 testing requirements are unchanged. The standard DOT five-panel test continues to include marijuana metabolites (THC). The cutoff levels at 49 CFR 40.87 are unchanged. A verified positive remains a verified positive.

The DOT Office of Drug and Alcohol Policy and Compliance has held consistently that state medical marijuana laws and the federal rescheduling of marijuana do not create a "legitimate medical explanation" defense for a positive DOT drug test result. That position long predates the April 28 Final Order and is not affected by it.

FMCSA Clearinghouse reporting is unchanged. A driver with a verified positive marijuana test is reported to the Clearinghouse, becomes prohibited from performing safety-sensitive functions, and remains prohibited until the return-to-duty process is completed and a negative return-to-duty test is reported. The same applies to refusals.

The return-to-duty process described at 49 CFR 40.305 and 49 CFR 40.307 is unchanged. SAP evaluation, prescribed education or treatment, follow-up testing — same framework, same timeline.

Drug and alcohol testing recordkeeping requirements under 49 CFR Part 382 Subpart D and 49 CFR Part 40 Subpart O are unchanged. The retention periods, the document categories, and the audit-evidence expectations remain in place.

What to do and by when

1. This week — communicate to drivers, plainly. A short, direct internal communication is more effective than a long policy memo. The message: federal scheduling changed for one narrow category of marijuana products; DOT drug and alcohol testing did not change; marijuana use remains a violation for any safety-sensitive position covered by Part 40. Use the language drivers will encounter at the truck stop, not the language a compliance manual would use.
2. Within 30 days — review and tighten policy SOP language. Pull the workforce drug and alcohol policy out of the employee handbook. Find every reference to marijuana. Confirm the language frames it correctly: prohibited under DOT testing for safety-sensitive positions regardless of state law and regardless of federal scheduling. Update any language that frames marijuana prohibition as a function of Schedule I status specifically — that framing is now stale even though the prohibition itself is intact.
3. Within 30 days — coordinate with HR for any non-DOT staff. The April 28 action has more practical effect on non-safety-sensitive staff than on DOT-regulated drivers, because non-DOT positions are governed by state law and employer policy rather than 49 CFR Part 40. HR should review whether the policy for non-DOT staff aligns with the carrier's intent in light of the federal change.
4. By June 29 — track the broader marijuana rescheduling hearing. The Federal Register hearing notice (FR-2026-08177) signals a slower, broader administrative process for the rescheduling of marijuana itself. The hearing record will shape the timeline. Anything that emerges from that hearing is the next event for safety managers to track.
5. Standing — leave the Clearinghouse query cadence alone. The Clearinghouse pre-employment query and annual-query requirements at 49 CFR Part 382 Subpart G are unchanged. Carriers who have built a routine cadence around them should hold the routine.
6. Standing — keep return-to-duty referrals routed the same way. SAP referral process, the SAP roster, and the follow-up testing plan remain in place. No procedural change.

Edge cases worth thinking through

A driver who is using an FDA-approved cannabinoid-related medication should handle that medication like any other prescription that may affect safety-sensitive work: disclose it during the MRO review process if relevant and follow medical-examiner guidance on safe CMV operation. The key point for DOT testing is that a state medical marijuana recommendation or card is not a valid medical explanation for a positive DOT marijuana test, and the April 28 Final Order does not change the Part 40 verification framework.

A driver who holds a state medical marijuana card and uses smoked or vaporized marijuana for a medical condition is in the posture the DOT Office of Drug and Alcohol Policy and Compliance has addressed directly and repeatedly: the state medical marijuana card does not create a legitimate medical explanation defense for a positive DOT drug test. The April 28 rescheduling does not change that. The MRO will verify the positive; the Clearinghouse reporting will proceed; the return-to-duty process applies.

A driver who lives in a recreationally legal state is in the same federal-testing posture as a driver who lives in a state with no marijuana law. DOT testing is federal and applies uniformly across the country.

How Foley helps

Foley's DOT drug and alcohol testing programs include consortium services for small and mid fleets, Clearinghouse query support, policy template review, and SAP-network access for the return-to-duty process. When a regulatory event like the April 28 DEA rescheduling lands, the practical question for a compliance team is who is on the other end of the phone to walk through the implications and confirm that the testing program does not need to change. That is the role Foley plays for fleets that want a counterpart on the testing program rather than a vendor on a transaction.

Frequently asked questions

Did the federal law on marijuana change on April 28?

Narrowly, yes. DEA moved FDA-approved drug products containing marijuana from Schedule I to Schedule III. Broadly, no — marijuana outside the categories covered by the April 28 Final Order remains subject to Schedule I controls pending the outcome of the broader rescheduling proceeding.

Can my driver use marijuana now?

Not for any safety-sensitive position covered by 49 CFR Part 40. The DOT drug and alcohol testing framework was not amended by the April 28 Final Order. A positive marijuana test remains a positive, with Clearinghouse reporting and return-to-duty consequences.

What about a driver with a state medical marijuana card?

The DOT Office of Drug and Alcohol Policy and Compliance has consistently held that state medical marijuana laws do not create a legitimate medical explanation for a positive DOT drug test. That position is unchanged by the April 28 action.

Does this affect FMCSA Clearinghouse reporting?

No. Clearinghouse query, reporting, and return-to-duty workflows at 49 CFR Part 382 Subpart G are unchanged. A driver with a verified positive marijuana test is reported to the Clearinghouse on the same timeline as before.

Does the MRO have new discretion for marijuana positives?

No. The April 28 rescheduling does not expand MRO discretion under 49 CFR Part 40. A verified positive for THC remains a verified positive.

What happens at the June 29 hearing?

The hearing announced in FR-2026-08177 is part of a separate administrative process to consider rescheduling marijuana itself — not just FDA-approved products. The hearing record will shape any broader scheduling action. Track that process for the next substantive update to the federal framework around marijuana.

Sources

• Federal Register: DEA Final Order, FDA-Approved Marijuana Products to Schedule III (FR-2026-08176, April 28, 2026)
• Federal Register: Hearing Notice on Broader Marijuana Rescheduling (FR-2026-08177, April 28, 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
• DOT Office of Drug and Alcohol Policy and Compliance
• FMCSA Drug and Alcohol Clearinghouse
• Foley: Five Years In — How the FMCSA Clearinghouse Is Changing in 2025