On December 18, President Trump signed an executive order directing the reclassification of marijuana from Schedule I to Schedule III under the federal Controlled Substances Act (CSA). Marijuana had been a Schedule I controlled substance since President Richard Nixon signed the CSA into law in 1970.
While the executive order will reduce restrictions on research, improve banking access for cannabis businesses, and eliminate the punitive tax implications of IRS Section 280E, it does not federally legalize marijuana for recreational use or non-prescribed medical purposes.
By definition, Schedule III controlled substances have a low to moderate potential for physical and psychological dependence coupled with an accepted medical use for treatment in the United States. Schedule III substances may be dispensed directly by a health care practitioner but otherwise require a prescription and must be dispensed by a registered pharmacy, subject to DEA regulations.
Schedule III includes approximately 80 drugs. Examples include:
• Combination products such as Tylenol with codeine;
• Testosterone used in hormone replacement therapy; and
• Ketamine, a dissociative anesthetic used for depression treatment and pain management in clinical settings.
By contrast, Schedule I substances, such as heroin and LSD, have no accepted medical use and high abuse potential. The shift to Schedule III makes FDA-approved prescription forms of marijuana possible, but marijuana in plant form won’t qualify without further regulatory approval.
Colorado’s Amendment 20 and Amendment 64, legalizing medical and recreational marijuana, respectively, operate in parallel to federal law, which has helped employers enforce their drug policies by side-stepping Colorado’s lawful off-duty activities statute, C.R.S. § 24-34-402.5. That statute protects employees from termination for engaging in lawful activities outside of work hours and off company premises unless those activities relate to a bona fide occupational requirement or are necessary to avoid a real or apparent conflict of interest with the employer’s business.
However, in the 2015 Coats v. Dish Network case, the Colorado Supreme Court ruled that “lawful” means compliant with both state and federal law, and that off-the-job marijuana use was therefore not lawful off-duty conduct. The ruling affirmed employers’ rights to enforce zero-tolerance drug policies, even for off-duty, state-legal use.
President Trump’s executive order does little to affect workplace policies in the near term. Since Schedule III still requires a prescription for lawful use under federal law, non-prescribed consumption, whether recreational or medical, remains a federal violation. Thus, the Coats ruling likely continues to apply, allowing employers to enforce their drug testing policies and discipline employees for positive marijuana tests without violating the off-duty statute.
However, prescription marijuana formulations, should they come to pass, will create complications for Colorado employers. Unless a drug test can distinguish between prescription and “conventional” marijuana products, a marijuana-impaired employee who possesses a marijuana prescription will be difficult to discipline unless HR is well-equipped to document the signs and symptoms of marijuana impairment.
Employers Council will monitor any future developments. For questions about the executive order or drug and alcohol policies in general, contact us at info@employerscouncil.org.
Curtis Graves, Esq., is a labor and employment law attorney with Employers Council.