A manager in an HR department is staring at a positive drug test and wondering if taking action will result in legal action against the company. In 2026, that moment—hesitant, uncertain, and legally exposed—is occurring surprisingly frequently in American workplaces. The laws pertaining to employment and marijuana have not just changed. They’ve broken.
HR inboxes quickly filled after President Trump signed an Executive Order in December 2025 instructing the DOJ to expedite the reclassification of marijuana from Schedule I to Schedule III. Workers believed the regulations had been altered. A few managers made the same assumption. Neither group was correct. The directive instructed agencies to start the rulemaking process, which still necessitates formal publication and public comment periods before any legal changes are made. Meanwhile, within a day, the Department of Transportation sent out a compliance notice clarifying the situation: safety-sensitive workers are still subject to the same drug testing requirements, including marijuana. However, the confusion continued, and it still exists in certain organizations.
There is a risk associated with that confusion. Workers are learning about rescheduling and believing that federal policy now protects their off-duty use. Under pressure and with inadequate training, supervisors are either ignoring the situation or making decisions that might not stand up in court. Neither answer can be justified.
The more complex reality is found in the expanding patchwork of state laws rather than at the federal level, which has made it nearly impossible for multi-state employers to have a consistent marijuana policy. Protections that prohibit employers from taking unfavorable action based only on an employee’s use of marijuana off-duty have been implemented in California, New York, New Jersey, Illinois, and Maryland. In New Jersey, there must be proof of actual impairment or a documented policy violation in order to terminate someone based solely on a positive test. Many employers fail to make this crucial distinction.
This is where the science becomes really challenging. Long after any impairment has subsided, THC metabolites can still be found in urine days or weeks after use. A positive test result does not tell you whether the employee was impaired at work on Tuesday morning. It indicates that they have recently used cannabis. The gap between detection and impairment is precisely where legal challenges are being developed in states that now require employers to prove on-the-job impairment prior to taking disciplinary action. Conventional testing techniques were created for a legal context that is no longer present in a large portion of the nation.
Employers in the trucking, aviation, rail, transit, and pipeline industries that are subject to DOT regulations are in a different but cleaner situation. The agency has been clear: until federal rulemaking is finished and new regulations are formally published, nothing changes. Regardless of state law, employees who are concerned about their safety are prohibited from using cannabis. However, there might be a problem later on. Technically, DOT regulations only allow testing for Schedule I and Schedule II drugs; therefore, a final rescheduling to Schedule III may eventually necessitate a revision of those regulations. The outcome is not certain, but it is also not impossible, according to legal experts and the DOT itself. It is worth keeping an eye on, but no employer should act on that uncertainty just yet.
Training supervisors to recognize impairment is something that many employers struggle with, as legal observers consistently point out. State laws are increasingly requiring observable indicators that are recorded in real time. A trained supervisor who can describe particular behavioral changes, explain why they raised concerns, and demonstrate that uniform standards were applied throughout the workforce cannot be replaced by a lab result. Arbitration cases and state agency complaints tend to gain traction in the absence of such disciplined documentation, which is not particularly common.
Perhaps more clarity will emerge in the next two years. When the federal rescheduling is finalized, it will compel a more comprehensive policy review at numerous organizations. A number of states have legalization bills in the legislature or on their way to the ballot. However, if a policy is already sound, then waiting for clarification before making changes is a legitimate tactic. It isn’t for a sizable portion of employers. The gap in compliance is not hypothetical. The employers who are most at risk are frequently the ones who are most certain they have this figured out, and it is already creating legal exposure.
