Wait, Is Marijuana Legal? How Trump’s Executive Order on Marijuana May Impact the Workplace

Just in time for the holidays, President Trump has issued an executive order that will be beloved by the budding marijuana industry: a directive to the U.S. Department of Health and Human Services to begin the process of “rescheduling” marijuana so that it will be available for medical research and medicinal use. What does this mean for employers?

Importantly, marijuana remains illegal as a matter of federal law – for now – for all purposes. Employers do not need to adjust their substance abuse policies or testing programs. Eventually, some marijuana and marijuana products will be approved for medical use, subject to federal regulation. Employers subject to federal transportation regulations will need to watch for changes to determine when, and if, the laws mandating marijuana testing of workers in safety-sensitive transportation roles will change. Employees, however, may not understand the limited scope and delayed effect of the order, and communicating employer expectations should help prevent misunderstanding.

What Is it, and What Does the New Executive Order Do?

President Trump issued the executive order titled, “Increasing Medical Marijuana and Cannabidiol Research” on December 18, 2025. The order’s “purpose” section states, “Americans deserve access to the best medical treatments and research infrastructure in the world. In 2023, the Food and Drug Administration (FDA) completed a review of the landscape of medical use of marijuana and found scientific support for its use to treat anorexia related to a medical condition, nausea and vomiting, and pain.” It goes on to note:

Marijuana is currently controlled under Schedule I of the Controlled Substances Act (CSA). In 2023, the Department of Health and Human Services (HHS) recommended to the Drug Enforcement Agency that marijuana be controlled under Schedule III of the CSA. Schedule I drugs are defined as drugs with no currently accepted medical use, a high potential for abuse, and a lack of accepted safety for use of the drug under medical supervision. Schedule III drugs are classified as having a potential for abuse less than the drugs or other substances in Schedules I and II, a currently accepted medical use in treatment in the United States, and a potential for moderate or low physical dependence or high psychological dependence in the event of drug abuse.

By way of comparison, Schedule III drugs include powerful medications such as codeine, ketamine, and some opioids, all of which are available only by prescription and subject to medical oversight once prescribed, while Schedule I drugs are never lawful for medical use.

Marijuana’s place on Schedule I of the Controlled Substances Act has made it difficult for researchers to study possible medical uses of marijuana. The U.S. Department of Health and Human Services recommended that marijuana be rescheduled in 2023, and in early 2024, the Department of Justice issued a proposed rule that would reschedule marijuana to Schedule III. As the executive order notes, the DOJ’s proposed rule received nearly 43,000 public comments and is currently awaiting an administrative law hearing. Given the delay, this executive order directs the attorney general to complete the rescheduling process “in the most expeditious manner in accordance with Federal law.”

The new executive order does not suggest that marijuana will eventually become “legal” under federal law for recreational use, and President Trump disclaimed this intention in separate remarks. In fact, one aspect of the executive order directs executive branch leaders to work with Congress – which recently limited the manufacture and sale of hemp-derived products such as Delta 8 THC and other ultraprocessed “intoxicating hemp products” created by concentrating hemp’s naturally occurring low amounts of these compounds – to make available only those products that do not pose health risks. In other words, if Congress agrees to allow the production and sale of these products, the executive order makes clear that formerly unregulated marijuana products will be subject to federal regulation.

Once the rescheduling is complete, marijuana will likely be available by prescription for some individuals with approved conditions, and subject to oversight by a health care professional authorized to prescribe them. In the not-too-distant future, medical marijuana patients may be able to defray the costs of these products through their health insurance benefits, including Medicaid, if those products’ benefits are found to outweigh the risks.

How Does this Impact State Marijuana Laws? 

Federal rescheduling, should it occur, may preempt or impact the enforceability of state laws that currently make certain forms of cannabis available. For now, however, state law bans or restrictions remain valid and enforceable unless the state legislature changes its statutes. Similarly, state law protections for medical marijuana users are not impacted. Schedule III status would continue to classify marijuana as a controlled substance under federal law, but would allow its use for certain medical purposes. Thus, employers can still prohibit use and enforce drug-free workplace policies consistent with state law.

Workplace Impacts

President Trump’s executive order signals his support for rescheduling marijuana and will likely hasten the process begun in 2023. For many reasons, it is also good news for the marijuana industry players, especially those focused on other-than-intoxicating hemp products. It does not (and will not) however, make marijuana use legal across the board from a federal perspective. Nor does it overturn Congress’ November 2025 decision to prohibit the manufacture and sale of intoxicating hemp products, but directs the administration to work with Congress to put new rules in place. As a result, the executive order does not have any immediate impact on workplace substance abuse and testing policies.

Looking forward, an eventual rescheduling would impact employer obligations to disabled individuals under the Americans with Disabilities Act, who may be entitled to reasonable accommodations of prescription marijuana use. (In fact, for many years there have been a few prescription medications that contain marijuana derivatives available by prescription.) Even then, employers likely would be under no obligation to accommodate marijuana use that posed a direct threat to any person. 

Unionized workplaces may start to see an uptick in bargaining proposals regarding permissive use of marijuana, citing specifically to the purported medical benefits of marijuana. Other employers may start to see more grievances concerning discipline for marijuana use or positive drug test results, particularly if the employer’s policy against the use of the drug is not well-defined or communicated.  

For employers in the transportation industry, the executive order presages change, but it is too soon to know what those changes will be. Although the executive order specifically states that “Nothing in this order shall be construed to impair or otherwise affect… the authority granted by law to an executive department or agency, or the head thereof,” Congress directed the DOT to prohibit and test for illegal drugs and alcohol misuse by transportation workers. The various DOT agencies have therefore implemented rules prohibiting the use of marijuana by regulated workers (see, for example, 49 C.F.R. Part 40), covering pilots, bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, and pipeline emergency response personnel, among others. The DOT regulations preempt any state marijuana law rules as to covered workers, as well.

On December 19, the DOT’s Office of Drug & Alcohol Policy & Compliance issued a press release saying, in part:

First – marijuana is still a Schedule I drug under the CSA until any rescheduling is complete. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

Second – until the rescheduling process is complete, the Department of Transportation’s drug testing process and regulations will not change. Transportation employees in safety-sensitive positions will still be subject to testing for marijuana. Furthermore, the Department’s guidance on medical and recreational marijuana and CBD are still in effect.

If marijuana is rescheduled and is removed from Schedule I’s list of illegal drugs, the underlying federal law that directs testing for transportation workers would no longer authorize the DOT to require such testing. Given the very real safety impacts of such a change, industry groups such as the American Trucking Associations have already voiced their concerns about any future change, and DOT Secretary Duffy has previously publicly expressed concerns about the impact of such a change on transportation safety. Looking forward, we expect changes to the regulations addressing the safety issues as marijuana moves toward reclassification.

Until then, employers of regulated employees should and must maintain their policies in accordance with those regulations. And, for non-regulated workers, protections for medical marijuana may be found in existing state law, but are not yet approved or required for any worker as a matter of federal law. Changes are coming, but with 43,000 public comments to consider, new congressional limits on hemp-derived intoxicants, and a push for low-THC CBD products to be approved for medical use as a matter of federal law, those changes are still in the future.