Marijuana Is Being Rescheduled to Schedule III — But CDL Drivers and Trucking Employers Still Face Zero Tolerance

What Triggered All of This

On December 18, 2025, President Trump signed an Executive Order directing the Department of Justice to complete the formal process of moving marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA). This built on a 2023 HHS recommendation and a DEA proposed rule from 2024.

A partial rescheduling order affecting FDA-approved and state-licensed medical marijuana products may have followed in early 2026 — verify the current status directly with the DEA at dea.gov, as this process was still moving through formal rulemaking as of this writing. Even if a partial order has taken effect, the rescheduling process is not complete, and federal rulemaking — notice, comment period, legal challenges — is ongoing. The bottom line from the DOT's own Office of Drug and Alcohol Policy and Compliance (ODAPC): marijuana remains a tested substance under 49 CFR Part 40. That has not changed.

DOT's Position: Testing Continues

In its official notice, ODAPC stated clearly that until rescheduling is complete, DOT drug testing rules are unchanged. All safety-sensitive transportation workers — including CDL drivers, owner-operators, school bus drivers, train engineers, and pipeline emergency response workers — remain subject to the full testing regime under 49 CFR Parts 40 and 382. That means:

The Hidden Technical Problem: The "Testing Authority Gap"

This is where it gets more complicated — and why trucking compliance professionals need to pay attention.

Current DOT drug testing authority flows through HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs. Those guidelines authorize testing for Schedule I and Schedule II controlled substances. Once marijuana fully moves to Schedule III, a legal gap opens: HHS-certified laboratories could technically lose authority to test for marijuana under those guidelines.

The National Transportation Safety Board raised this issue directly with the DEA, warning that a completed rescheduling "would, upon becoming effective, immediately prohibit continued testing of safety-sensitive transportation employees for marijuana use under 49 CFR Part 40 and HHS Mandatory Guidelines."

To prevent that outcome, transportation industry groups, compliance attorneys, and agencies including DOT are pressing for one of several fixes:

• A congressional carve-out explicitly authorizing DOT marijuana testing regardless of CSA scheduling
• A regulatory clarification from DOT, HHS, and DOJ jointly
• An amendment to HHS Mandatory Guidelines creating an exception for safety-sensitive positions

As of this writing, no carve-out has been finalized. That's the situation to watch. Subscribing to DOT's ODAPC listserv will deliver updates as they happen.

No, a Medical Marijuana Card Does Not Help

This question comes up constantly. A Medical Review Officer (MRO) cannot verify a positive marijuana result as negative because the driver holds a state-issued medical marijuana card. DOT's guidance on this is unambiguous: state medical marijuana laws do not supersede federal drug testing requirements for safety-sensitive positions.

The same applies to recreational marijuana in states where it's legal. Federal law governs DOT testing, not state law.

If a CDL driver tests positive for marijuana, the result stands regardless of their state's marijuana laws or any prescription or card they hold.

What Fleet Managers and Owner-Operators Should Do Right Now

Keep your current testing program exactly as-is. Pre-employment, random, post-accident — no changes. Your five-panel DOT test (marijuana, cocaine, amphetamines, opiates, PCP) continues unchanged.

Communicate clearly with your drivers. The amount of misinformation circulating about marijuana rescheduling and CDL status is significant. A simple written notice to drivers — stating that marijuana testing continues, that state laws don't apply, and that positive results go to the Clearinghouse — is worth putting in writing.

Monitor ODAPC for updates. Subscribe to the ODAPC listserv at transportation.gov/odapc. If a carve-out is enacted or the testing landscape changes, that's where the official word will come from first.

Don't change your drug policy yet. Your policy should already include federal preemption language stating that federal rules supersede state law for safety-sensitive positions. If it doesn't, add it. Otherwise, wait for confirmed regulatory changes before revising anything substantive.

The Bottom Line

Marijuana rescheduling is a real regulatory development, but for CDL drivers and FMCSA-regulated fleets, nothing has changed yet. Test positive, and you're in the Clearinghouse in Prohibited status. State medical cards and recreational legalization don't apply.

The technical gap created by moving marijuana to Schedule III is a legitimate concern being actively worked through by agencies and Congress — but until an official resolution is in place, the rules stand as written. Stay current with ODAPC. Keep testing. Keep your policy current.

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