The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2026.  The rates are the same as 2025, except that the FRA Mechanical annual random alcohol testing rate has been decreased to 10%.

Agency2026 Random Drug Testing Rate2026 Random Alcohol Testing Rate
Federal Aviation Administration  25%10%
Federal Motor Carrier Administration  50%10%
Federal Railroad Administration  25%  covered service10%  covered service
Federal Railroad Administration25% maintenance-of-way10% maintenance-of-way
Federal Railroad Administration50% Mechanical10% Mechanical
Federal Transit Administration  50%10%
Pipeline and Hazardous Materials Safety Administration  50%N/A

President Donald Trump issued the “Increasing Medical Marijuana and Cannabidiol Research” Executive Order (EO) on Dec. 18, 2025. Contrary to what has been reported by many news outlets, the EO does not, by itself, reschedule marijuana to a Schedule III drug. Rather, it directs the Department of Justice (DOJ) to “take all necessary steps to complete the rulemaking process related to rescheduling marijuana to Schedule III of the CSA in the most expeditious manner in accordance with Federal law, including 21 U.S.C. 811.”

The EO expresses the administration’s desire to make medical marijuana more accessible for medical research and includes criticism of the federal government’s “long delay in recognizing the medical use of marijuana.”

The Drug Enforcement Administration (DEA) is the arm of the DOJ that is responsible for classifying controlled substances based on their potential for abuse and accepted medical use. Under the federal Controlled Substances Act (CSA), the DEA classifies drugs into five distinct categories, or schedules, depending on the drug’s acceptable medical use and its potential for abuse or dependence.

As the drug schedule changes, so does the abuse potential. Schedule I drugs are defined as having no currently accepted medical use and a high potential for abuse. Schedule V represents drugs with the least potential for abuse.

Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence. Some examples of Schedule III drugs are Tylenol with codeine, ketamine, buprenorphine, and anabolic steroids.

The DEA has reviewed the issue of rescheduling marijuana several times over the years, most recently in 2024. Hearings were scheduled in 2024 and then postponed. No actions have been taken since that time. The current head of the DEA has been vocal in his opposition to marijuana legalization, so it remains to be seen what the DEA will do to implement the EO.

Rescheduling marijuana to Schedule III will present many questions for employers when enforcing their substance abuse and drug testing policies.

First, rescheduling marijuana to Schedule III will not legalize marijuana for recreational purposes. This means that state and local recreational marijuana laws will remain intact.

Second, it is unclear how federal regulation will impact state medical marijuana laws. Should rescheduling be completed, employees potentially may request marijuana use as a reasonable accommodation under the Americans With Disabilities Act (ADA). Such ADA claims have previously been rejected by courts because marijuana use is illegal at the federal level. However, state laws, depending on how they are worded, can add a level of complexity.

Third, employers who are regulated by Department of Transportation (DOT) regulations will have to watch for revisions to DOT’s drug and alcohol testing regulations. Those regulations only permit drug testing for Schedule I and II drugs. Rescheduling marijuana to Schedule III will significantly impact drug testing programs for federally regulated transportation employers. For now, reported comments from Transportation Secretary Sean Duffy’s office shortly after the EO’s signing reinforce the existing bar on marijuana use by those is safety-sensitive DOT-regulated roles.

Unless and until the DEA officially moves to reschedule marijuana, employers conducting drug testing, including those subject to the DOT’s drug testing requirements, should operate as usual.

Please contact a Jackson Lewis attorney with any questions, including on the interplay between federal and state workplace laws.

 

The Department of Transportation proposed adding fentanyl and norfentanyl (a metabolite of fentanyl) to the DOT drug testing panel and making certain other technical amendments to its drug testing program.

According to a Sept. 2, 2025, Notice of Proposed Rulemaking, DOT’s proposed rule is intended to harmonize with the Department of Health and Human Services’ (DHHS) Mandatory Guidelines For Federal Workplace Drug Testing Programs.

DOT mandates drug and alcohol testing for certain federal transportation workers, including those regulated by the Federal Motor Carrier Safety Administration, the Federal Aviation Administration, the Pipeline and Hazardous Materials Safety Administration, the Federal Railroad Administration and the Federal Transit Administration. The Coast Guard’s regulations also follow the same drug testing guidelines, although the Coast Guard is regulated by the Department of Homeland Security.

DOT currently mandates drug testing for amphetamines, cocaine, marijuana, opioids (specifically consisting of codeine, morphine, heroin, hydrocodone, hydromorphone, oxycodone and oxymorphone) and PCP. The proposed new rule will add fentanyl to the urine and oral fluid drug testing panels and norfentanyl to the urine testing panel. (Oral fluid testing still is not yet permissible under DOT regulations because DHHS has not yet certified at least two laboratories to conduct oral fluid testing.)

DOT explained that it is adding fentanyl to its drug testing panels for safety reasons. DOT cited certain facts published by the Centers for Disease Control and Prevention, among other significant data, relied on for this decision:

  • Drug overdose death rates involving fentanyl increased by 279% from 5.7 per 100,000 in 2016 to 21.6 in 2021, according to CDC’s National Center for Health Statistics data.
  • While provisional data from the CDC indicates a 25.5% decrease in overdose deaths in the 12 months ending October 2024 compared with the same period in 2023, approximately 150 Americans die every day from overdose involving illegal, synthetic opioids such as illegally made fentanyl. Overdose remains the leading cause of death among Americans aged 18-44.
  • Approximately 70% of U.S. overdose deaths in 2023 were estimated to involve illegally manufactured fentanyls (IMFs). Local reports indicate reemergence of carfentanil, a fentanyl analog.

DOT’s proposed rule also would make the following additional changes:

(1) Raise the laboratory confirmatory test cutoff for morphine in urine drug testing from 2,000 ng/ml to 4,000 ng/ml;

(2) Remove the MRO requirement to determine clinical evidence of illegal opioid use to support a positive codeine or morphine result in urine and oral fluid testing;

(3) Add the word “biomarker” to certain definitions;

(4) Authorize laboratories to conduct biomarker testing once DHHS approves laboratory biomarker testing;

(5) Amend the analyte nomenclature for marijuana in both drug testing panels; and

(6) Revise the footnotes in both drug testing panels to be more specific.

The comment period has closed, and the proposed changes should take effect sometime in early 2026.

DOT-regulated employers will need to revise their drug and alcohol testing policies to be consistent with the new rule once it takes effect.

Please contact a Jackson Lewis attorney with any questions about employer compliance with this and other workplace laws.

The Iowa drug testing statute (Iowa Code § 730.5) became more employer friendly effective July 1, 2025. Although the Iowa drug testing law remains one of the most technically challenging in the country, the changes will make it easier for employers to defend lawsuits.

Burden of Proof

The Iowa drug testing law previously required employers to prove that the requirements of the drug testing law were met in the event an employee alleged a violation. The amendments state that an aggrieved employee or applicant “has the burden of establishing by a preponderance of the evidence that a violation … directly caused any damages for which affirmative relief is sought.”

The amendments provide that “[a]n employer” who violates the law or aids in the violation is liable to an aggrieved employee or prospective employee. Previously, the law permitted claims against “[a] person” who violated the law or aided in the violation.

The amendments also qualify that attorney’s fees awarded to an aggrieved employee or applicant must be “reasonable.”

Written Notices

Under the Iowa drug testing statute, employers are required to provide:

(1) Written notice to employees who test positive for drugs or alcohol; and

(2) For applicants and employees who are minors, a copy of the employer’s drug testing policy and written notice of positive test results to their parent.

These notices previously were required to be sent by certified mail, return receipt requested. (The Iowa Supreme Court had held that employers violated the statute by failing to provide prompt written notice of a positive test by certified mail, return receipt requested.) The prior version of the law also required employees who wished to request a retest of their specimen to inform the employer in writing by certified mail, return receipt requested.

As amended, employers may give applicants, employees, and minor applicants and employees (as well as their parents) the option of notice by “in-person exchange of materials or by electronic notification” or by certified mail, return receipt requested. Employees (including minor employees and their parents) can make this selection at the time of hire, and applicants and minor applicants (and their parents) can make this selection at the time a conditional job offer is made.

Safety Sensitive

Finally, the amendments modify the definition of safety-sensitive position. The law previously defined “safety-sensitive position” as “a job wherein an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage, including a job with duties that include immediate supervision of a person in a safety-sensitive position.”

As amended, a safety-sensitive position is “a position designated by the employer as one wherein an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage, including a job with duties that include immediate supervision of a person in a safety-sensitive position.” As such, employers should consider designating safety-sensitive positions in writing for clarity and consistency. This designation is important because the Iowa drug testing law limits certain types of tests to safety-sensitive employees.

Employers should review their policies and procedures to determine whether any updates are needed in light of these amendments. Please contact a Jackson Lewis attorney with any questions.

California’s AB 2188 greatly expanded the scope of the state’s existing marijuana laws because it prohibits discrimination based on the off-duty use of marijuana.  This prohibition creates a dilemma for employers who conduct marijuana drug testing because marijuana stays in the human body much longer than alcohol and other drugs.  The law has been in effect since January 1, 2024.

AB 2188 does not permit employers to conduct marijuana drug testing unless: (1) an exemption applies; or (2) the drug test detects only the “psychoactive” components of marijuana, i.e., tests only for current impairment.  While many employers remain uncertain about which tests can detect only the psychoactive components of marijuana (urine testing does not comply with the law), there are exemptions worth noting:

(1) The law does not apply to employees in the building and construction trades.

(2) The law does not apply to applicants or employees who must be tested for marijuana under federal regulations.

(3) The law does not apply to applicants and employees for positions that require a federal government background investigation or security clearance.

AB 2188 law does not explain or define the types of businesses or jobs that trigger the exemption for “the building and construction trades.”  But an earlier draft of the law contained this language: 

This section does not apply to an employee performing work associated with construction, including work involving alteration, demotion, building, excavation, renovation, remodeling, maintenance, improvement, or repair work, a person licensed under the Contractors State License Law (Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code), or an employee performing work in similar or related occupations or trades. 

That language later was shortened to “employees in the building and construction trades.”  The earlier draft certainly sheds light on the types of jobs that would fall within the exemption.

The benefit of the exemption is that construction employers may continue to use urine drug testing for marijuana and to take adverse employment actions against applicants and employees who test positive.  Exempt employers do not have to be concerned with using drug tests that detect only the “psychoactive” components of marijuana. The California courts have not yet addressed the issue of which types of drug tests detect only the “psychoactive” components of marijuana, so employers who do not fall within one of the statutory exemptions must make their own assessments as to the types of drug tests that potentially comply with the law.

Marijuana laws vary tremendously from state to state and even city to city.  Within the last few years, several laws have been enacted to restrict or prohibit marijuana drug testing, including for example:

  • New York does not permit any marijuana drug testing under any circumstances (except for testing mandated by federal law or federal contracts).
  • New Jersey protects all off-duty use of marijuana so marijuana drug testing should not be conducted except when there is reasonable suspicion or impairment that has been observed and documented by two supervisors.
  • Rhode Island protects all off-duty use of marijuana so marijuana drug testing should not be conducted except when there is reasonable suspicion of impairment.
  • Washington prohibits pre-employment marijuana testing unless the test can detect the “psychoactive” components of marijuana or there is a safety-sensitive exception, (i.e., the position involves a high risk of death).
  • Philadelphia, PA. does not permit pre-employment marijuana drug testing unless a statutory exemption is met.
  • Pittsburgh, PA. does not permit pre-employment marijuana drug testing of medical marijuana users, unless an exception applies.

Employers who operate in multiple states must review all applicable marijuana laws to ensure compliance.

Please contact a Jackson Lewis attorney with any questions about employer compliance with this and other workplace laws.

The Iowa Supreme Court recently clarified that a compliant random drug testing program under Iowa law requires excluding those who are not scheduled to work the day of the testing from the pool of employees who could be selected. Hampe v. Charles Gabus Motors Inc. d/b/a Toyota of Des Moines et ano., No. 22-1599 (Iowa Sup. Ct. Apr. 11, 2025).

Iowa has one of the most technical drug testing laws in the country. It allows unannounced random testing of:

(1) The entire employee population at a particular work site of the employer except for employees not subject to testing pursuant to a collective bargaining agreement, or employees who are not scheduled to be at work at the time the testing is conducted because of the status of the employees or who have been excused from work pursuant to the employer’s work policy prior to the time the testing is announced to employees.

(2) The entire full-time active employee population at a particular work site except for employees not subject to testing pursuant to a collective bargaining agreement, or employees who are not scheduled to be at work at the time the testing is to be conducted because of the status of the employee or who have been excused from work pursuant to the employer’s working policy.

(3) All employees at a particular work site who are in a pool of employees in a safety-sensitive position and who are scheduled to be at work at the time testing is conducted, other than employees not subject to testing pursuant to a collective bargaining agreement, or employees who are not scheduled to be at work at the time the testing is to be conducted or who have been excused from work pursuant to the employer’s work policy prior to the time the testing is announced to employees.

Iowa Code 730.5(8)(a).

In the case before the Supreme Court, the employer used a random testing pool that consisted of all employees. The employer did not exclude employees who were not scheduled to be at work at the time the testing was conducted or who were excused from work pursuant to the employer’s policy. Instead, the employer had a list of alternate employees who could be tested if selected employees were not at work on the day the testing was conducted.

The Iowa Supreme Court held that this practice did not “substantially comply” with the law. Strict compliance with the law is not required, it explained, but substantial compliance is required. The Court held that the employer did not substantially comply with the law when it made no attempt to exclude employees who were not scheduled to be at work or because they had been excused pursuant to an employer policy.

Focusing on the plain language of the statute, the Court stated that it is the way the random pool is constructed that matters, even if, as a practical matter, it is difficult to comply with the statute’s requirements given the “fluid circumstances” of today’s workplace.

Please contact a Jackson Lewis attorney with any questions about employer compliance with this and other workplace laws.

The Third Circuit Court of Appeals has held that the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”) does not permit a private citizen to bring a civil action for enforcement of the provisions prohibiting discrimination against cannabis users.  Erick Zanetich v. Wal-Mart Stores East, Inc. et al., Docket No. 23-1996 (3d Cir. Dec. 9, 2024).

CREAMMA was passed to control and legalize cannabis in a similar fashion to the regulation of alcohol for adults, including preventing the sale or distribution of cannabis to people under the age of 21. The law also provides certain protections to current and prospective employees, including preventing employers from refusing to hire a job applicant because of the applicant’s use or non-use of cannabis, as well as from taking an adverse employment action against an employee based solely on a positive cannabis drug test. However, CREAMMA does not expressly allow citizens to bring a private cause of action, such as a civil action, to remedy alleged employment discrimination suffered because of an individual’s use of cannabis.  This conclusion recently was challenged and the Third Circuit confirmed that CREAMMA does not confer a private right of action. 

Zanetich applied for an asset protection position at a Walmart facility in Swedesboro, New Jersey.  Zanetich was offered the job, subject to taking and passing a drug test. After Zanetich tested positive for cannabis, the job offer was rescinded.  He subsequently filed a two-count Complaint against Walmart alleging Walmart discriminated against him for his use of cannabis in violation of CREAMMA and that Walmart wrongfully rescinded his job offer in violation of public policy. Walmart removed the case to federal court and moved to dismiss.  The District Court granted Walmart’s motion, with prejudice, dismissing the case and finding that CREAMMA does not contain an implied remedy for violations of its employment-related protections, nor does the public policy exception to the recission of a job offer based on a positive drug test for cannabis apply to Zanetich’s claims. As the case was dismissed with prejudice, Zanetich did not have the opportunity to cure any defects in the Complaint by filing an amended Complaint.

Zanetich appealed this decision to the Third Circuit Court of Appeals, which affirmed the District Court’s decision to dismiss the Complaint.

There was no dispute CREAMMA does not expressly provide for a private right of action, and, the Third Circuit ultimately held that CREAMMA did not imply a private right of action either.  Specifically, the Court held CREAMMA protects both cannabis and non-cannabis users and, therefore, Zanetich could not establish the statute provided him with any special benefit.  The Court further noted that if the Legislature wanted to include a private right of action for citizens, it would have done so explicitly. Finally, the Third Circuit held the CREAMMA’s explicitly-stated underlying purposes concerned the use and distribution of cannabis, which does not support a private right of action to enforce the employment-related provisions. Therefore, the Court upheld the District Court’s dismissal of Zanetich’s first claim.

The Court also analyzed the applicability of Pierce v. Ortho Pharm. Corp, which creates an exception to the at-will employment doctrine for employees who were terminated in violation of public policy. Ultimately, the Third Circuit held this exception only applies to former employees terminated from their position because of their complaints about a suspected violation of a clear mandate of public policy. As Zanetich was not a former employee, but instead was a prospective applicant, the Third Circuit upheld the District Court’s dismissal of this claim as well.

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2025.  The rates are the same as 2024, except that PHMSA has increased its random drug testing rate to 50%.

Agency2025 Random Drug Testing Rate2025 Random Alcohol Testing Rate
Federal Aviation Administration  25%10%
Federal Motor Carrier Administration  50%10%
Federal Railroad Administration  25%  covered service10%  covered service
Federal Railroad Administration25% maintenance-of-way10% maintenance-of-way
Federal Railroad Administration50% Mechanical25% Mechanical
Federal Transit Administration  50%10%
Pipeline and Hazardous Materials Safety Administration  50%N/A

Florida law requires employers to consider accommodations for off-duty use of medical marijuana, a Florida state court has held and granted the plaintiff’s motion for summary judgment. Giambrone v. Hillsborough County, No. 20-CA-4719 (Fla. 13th Cir. Ct. Dec. 10, 2024).

The plaintiff, Angelo Giambrone, was employed by Hillsborough County as an emergency medical technician (EMT) and was selected for a random urine drug test. He tested positive for marijuana. In accordance with an applicable collective bargaining agreement and Hillsborough County’s Drug Free Workplace Policy, Giambrone presented his employer and the testing doctor with a valid medical marijuana card.

Hillsborough placed Giambrone on administrative leave. It never alleged Giambrone used marijuana during the course and scope of his employment as an EMT or that his job performance was negatively affected by his use of cannabis outside of work. After Giambrone’s positive drug test, Hillsborough reported him to the EMT licensing board. The board subsequently dropped their investigation for lack of probable cause based on Giambrone’s possession of a medical marijuana card.

Giambrone sued the employer, alleging disability discrimination for failure to accommodate under the Florida Civil Rights Act. He also alleged wrongful termination and breach of contract for failure to accept his state-issued medical marijuana card as justification for his positive drug test result. Hillsborough argued that a medical marijuana card does not immunize an employee from both federal law and employee discipline.

The court noted Giambrone was a qualified patient suffering from anxiety and insomnia that “significantly impacts his day-to-day life when unmedicated.” The court further noted the plain language of Article X, Section 29 of the Florida Constitution states that it does not require accommodations for any on-site use of medical marijuana “in any place of education or employment ….”  The court concluded the Florida State Constitution requires employers to accommodate the off-site use of marijuana by qualified patients. Thus, any legislative ban on the private off-duty use of medical marijuana by qualified patients would be unconstitutional under state law. Accordingly, Giambrone was protected under the Florida Civil Rights Act and was entitled to a disability accommodation.

The court was unpersuaded by the argument that marijuana is illegal under federal law, because Giambrone’s EMT license was supervised by the state of Florida, not federal law. The Florida Department of Health dropped its investigation of Giambrone because he held a valid medical marijuana card. In addition, the court noted that language in the collective bargaining agreement permitted employees to report the use of prescription medications that are authorized under federal or state law to explain their positive drug test results.

Florida employers should review their policies and practices with respect to positive drug test results caused by the off-duty use of medical marijuana.

(Law Graduate Yori Johnson assisted in the preparation of this blog post.)

Nebraska voters approved medical cannabis measures, while voters in Florida, North Dakota, and South Dakota rejected ballot initiatives to legalize recreational cannabis on election day.

Nebraska Medical Cannabis Measures

Nebraska voters approved Ballot Initiatives 437 and 438, which legalize and regulate medical cannabis in the state. While the measures were widely supported, there is lingering uncertainty due to pending legal challenges about the validity of signatures on each measure’s petition for ballot access. It may be weeks before the Lancaster County District Court decides whether the initiatives were properly on the ballot.

Setting aside the pending legal challenges, the State Canvassing Board will meet to certify statewide voting totals on Dec. 2, 2024 (the fourth Monday following the election). Within 10 days after certification of the results by the State Canvassing Board, the governor must issue a proclamation declaring the approved measures to be in full force and effect.

Initiative 437, the Nebraska Medical Cannabis Patient Protection Act, would allow qualified patients to use, possess, and acquire up to five ounces of cannabis for the alleviation of a medical condition, its symptoms, or side effects of the condition’s treatment. Caregivers would also be permitted to possess and acquire up to five ounces of cannabis on behalf of the qualified patient.

The law defines “qualified patient” as an individual 18 years of age or older with a written recommendation from a health care practitioner stating that, in the practitioner’s professional judgment, the potential benefits of cannabis outweigh the potential harms for the alleviation of a patient’s medical condition, its symptoms, or side effects of the condition’s treatment. Individuals under 18 years of age require both a written recommendation from a health care practitioner and written permission of an authorized legal guardian or parent.

Initiative 438, the Nebraska Medical Cannabis Regulation Act, would create the Nebraska Medical Cannabis Commission and vests the commission with authority to “regulate all phases of the control of the possession, manufacture, distribution, delivery, and dispensing” of medical cannabis for medical purposes by registered cannabis establishments.

Neither ballot measure addresses employer rights or obligations with respect to medical cannabis or qualified patients. However, there may be some risk of employment discrimination claims associated with medical cannabis. The Nebraska Fair Employment Practice Act (NFEPA) does not protect current users of illegal drugs, but illegal drug use under the law does not include “the use of a drug taken under supervision by a licensed health care professional…or any other use authorized by…other provisions of state law.” Additional legislation or guidance from Nebraska courts is needed to clarify the protections available to qualified patients under NFEPA, if any.

If the laws take effect, employers should consult with counsel before taking adverse employment action against qualified patients based on lawful medical cannabis use.