U.S. Drug Enforcement Administration Recommends Rescheduling Marijuana To Schedule III, Similar To Tylenol With Codeine –

The U.S. Drug Enforcement Administration will recommend that
marijuana should be rescheduled from a Schedule I drug to a
Schedule III drug, according to an announcement made April 30, 2024
by the U.S. Department of Justice. This means that marijuana would
be considered a drug with “moderate to low potential for
physical and psychological dependence.”

Under the federal Controlled Substances Act, the DEA classifies
drugs into five distinct categories, or schedules, depending on the
drug’s acceptable medical use and its potential for abuse or
dependence. Schedule I drugs have a high potential for abuse and
the potential to create severe psychological and/or physical
dependence. As the drug schedule changes, so does the abuse
potential, with Schedule V representing the drugs with least
potential for abuse.

Marijuana has been a Schedule I drug since the inception of the
Controlled Substances Act in 1970. Schedule I drugs are defined as
having no currently accepted medical use and high potential for
abuse. Examples of Schedule I drugs include heroin, LSD, Ecstasy,
methaqualone and peyote.

Schedule III drugs are defined as drugs with a moderate to low
potential for physical and psychological dependence. Some examples
of Schedule III drugs are: Tylenol with codeine, ketamine,
buprenorphine and anabolic steroids.

This move was expected after the U.S. Department of Health and
Human Services recommended in August 2023 that DEA reschedule
marijuana to Schedule III.

The DEA’s proposal now must be reviewed by the White House
Office of Management and Budget. Once OMB agrees, DEA will then
accept public comments. After the public comment period, an
administrative judge will review the proposal. If accepted, the DEA
will publish a final rule.

Once marijuana becomes a Schedule III drug, it will be available
for medical use and can be prescribed by health care providers and
dispensed by pharmacies. This reclassification also will relieve
the tax burden on cannabis businesses and benefit the financial
institutions who work with these businesses.

Impact on Employers

The most significant impact on employers once marijuana is
permitted for medical use at the federal level is that there likely
will be more legal claims asserted under the federal Americans With
Disabilities Act related to requests for reasonable accommodations.
Up until this time, ADA claims related to marijuana use generally
were rejected by the courts because marijuana was an illegal drug
at the federal level. Users of marijuana had to file claims under
state law if the applicable state law permitted it.

Additionally, making marijuana a Schedule III drug at the
federal level still leaves a conflict with state
recreational marijuana laws that permit use of marijuana
without a medical prescription. For employers who conduct drug
testing, there still will be many different state and local laws
impacting marijuana drug testing; the change at the federal level
will not make compliance with those laws any easier.

Rescheduling marijuana to Schedule III also does not impact hemp
products with no more than .3% THC which were legalized at the
federal level a few years ago, although they are not being
regulated. The Food and Drug Administration stated last year that
it wants to work with Congress on “new regulatory
pathways” for hemp and CBD products but no such
“pathways” have materialized. In March 2024, twenty-one
state Attorneys General signed a letter asking Congress to revise
the Farm Bill that legalized hemp products to clarify that there
can be no loophole for any products that cause intoxication. The
letter pointed out that ” . . . the reality is that this law
has unleashed on our states a flood of products that are nothing
less than a more potent form of cannabis, often in candy form that
is made attractive to youth and children – with staggering
levels of potency, no regulation, no oversight, and a limited
capability for our offices to rein them in.”

The proliferation of these hemp and CBD products also makes
workplace drug testing complicated because drug tests generally
cannot distinguish between marijuana, hemp and CBD and generally
cannot detect recent use or current impairment.

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