While the stay creates additional uncertainty about the timing of broader marijuana rescheduling, it does not affect the prior rescheduling of certain medical marijuana products or change existing workplace drug testing requirements.
BACKGROUND
On April 28, the US Department of Justice (DOJ) issued an order immediately reclassifying certain marijuana products from Schedule I to Schedule III, including marijuana products approved by the US Food and Drug Administration (FDA) and marijuana regulated under state medical marijuana licensing programs. This order is detailed in our prior LawFlash, Marijuana Rescheduling Begins: What Employers Need to Know About DOJ’s New Order.
In that order, the DOJ also directed the DEA to hold expedited administrative proceedings to consider whether additional marijuana products should be rescheduled, including products made for recreational use. The DEA designated its chief administrative law judge (ALJ) to oversee these proceedings, and its initial hearings concluded on July 15.
DEA STAYS RESCHEDULING PROCEEDINGS
On September 28, several interested parties filed a joint motion before the ALJ, seeking to introduce a newly issued GAO report into the administrative record and obtain supplemental briefing concerning its findings.
The September 23 GAO report, prepared in response to congressional inquiries concerning federal drug scheduling procedures in general, identifies gaps in the DEA’s and FDA’s processes for evaluating substances and developing scheduling recommendations. While the report’s findings and recommendations were not limited to marijuana, it did discuss recent federal marijuana rescheduling efforts.
Among other measures, the GAO report recommends that the agencies establish more comprehensive policies and procedures and update existing interagency coordination protocols. The GAO report does not give a recommendation for or against rescheduling marijuana.
In response to this joint motion, the ALJ stayed the proceedings, thereby delaying the issuance of its recommended decision. It directed federal agencies to respond to this motion by October 13.
In its response, the DEA did not oppose admission of the GAO report into the administrative record but argued that supplemental briefing was unnecessary since the report did not identify deficiencies in the scientific analyses underlying the proposed rescheduling. Other interested parties disagreed and argued that additional briefing or limited discovery was necessary.
If the ALJ permits supplemental briefing, the parties will have additional opportunities to address the report’s findings, which will likely delay the ALJ’s decision. The proceedings could see further delay if the ALJ permits additional discovery or testimony concerning the agencies’ scheduling methodologies.
If admitted, the substance of the GAO report could influence the ALJ’s decision regarding rescheduling. In particular, the ALJ may consider whether the procedural deficiencies identified in the report call into question the consistency or reliability of the agencies’ underlying evaluations, including their assessment of marijuana’s potential for abuse and currently accepted medical use.
Depending on the ALJ’s findings, the report could prompt closer scrutiny of the agencies’ analyses or contribute to a recommendation against rescheduling. Alternatively, the ALJ could conclude that the identified procedural gaps do not undermine the substantive scientific evidence supporting rescheduling and recommend that the proposed reclassification proceed.
IMPLICATIONS FOR EMPLOYERS
The stay does not alter the DOJ’s April order rescheduling certain medical marijuana products or change existing federal workplace drug testing requirements. Employers generally may continue to prohibit marijuana use and impairment in the workplace, subject to applicable federal, state, and local laws.
Nevertheless, employers should continue evaluating their drug testing, reasonable accommodation, and disciplinary practices in light of applicable state and local protections. A positive marijuana test may not, by itself, establish current impairment or justify discipline in every jurisdiction.
For additional information and guidance on this topic, please refer to Morgan Lewis’s prior LawFlash, Marijuana Rescheduling Begins: What Employers Need to Know About DOJ’s New Order.
For employers subject to US Department of Transportation (DOT) drug testing requirements, existing obligations remain unchanged. The DOT confirmed that an employee’s use of marijuana authorized under a state medical marijuana program does not constitute a legitimate medical explanation for a positive DOT-required marijuana test.
NEXT STEPS
After the ALJ determines whether to permit further briefing or evidentiary proceedings relating to the GAO report or otherwise admit it, the ALJ will issue a recommended decision on the proposed marijuana rescheduling. The DEA will then review the ALJ’s recommendation and the administrative record before it makes a final determination. Such determination may then be subject to potential judicial challenges.
In the meantime, employers generally may continue to prohibit marijuana use and impairment in the workplace, subject to applicable federal, state, and local laws. Employers should also review applicable state and local restrictions on testing and discipline and monitor developments from the DEA, DOJ, DOT, and other federal agencies.
