Cannabis Rescheduling Is Coming, And Workplace Litigation Will Accelerate

There is a high likelihood that cannabis will be rescheduled from a Schedule I to a Schedule III drug as early as this week. While this shift represents a significant change in federal drug policy, it will not resolve the confusion employers and employees already face. Instead, it is likely to accelerate workplace disputes and increase employment-related litigation.

Rescheduling does not legalize cannabis at the federal level, nor does it override state employment laws, federal safety regulations, or employer obligations to maintain safe and productive workplaces. What it does do is further complicate an already fragmented framework that includes medical versus recreational cannabis, hemp-derived versus marijuana-derived THC, and state protections versus federal requirements. As a result, courts will increasingly be asked to determine where lawful use ends and workplace risk begins.

Why Cannabis-Related Court Cases Will Increase

Legal cannabis use and workplace expectations are diverging.

Many states now protect lawful off-duty cannabis use, particularly medical use, and some restrict or prohibit pre-employment marijuana testing. At the same time, employers retain the right, and in many cases the obligation, to prohibit on-duty use and impairment. The challenge is that impairment is rarely defined in statute and cannot be reliably measured by traditional drug testing methods. This disconnect creates fertile ground for disputes over discipline, termination, and hiring decisions.

Hemp-derived THC products are driving unintended violations.

Hemp-derived cannabinoids such as delta-8 are widely marketed as legal alternatives to marijuana. However, these substances are psychoactive and cause impairment. Most workplace drug test programs do not distinguish between delta-8 and delta-9, leaving employees confused and employers struggling to enforce policies fairly and consistently. These scenarios are increasingly leading to claims of wrongful termination, discrimination, and policy misapplication.

Drug testing results are being misinterpreted.

Urine testing detects historical cannabis use rather than current impairment. Oral fluid testing can identify more recent use but still dos does not show cognitive impairment. In many cases, employers continue to treat any positive result as evidence of workplace risk, despite scientific and legal limitations. Courts are now being asked to assess whether testing methods align with the employer’s stated purpose and whether conclusions drawn from those results are reasonable and defensible.

Workplace policies are lagging behind the law.

Many drug and alcohol policies were written before widespread cannabis legalization, the rise of hemp-derived products, and evolving employee protections. Policies that fail to address off-duty use, safety-sensitive distinctions, or newer forms of THC exposure are increasingly vulnerable to legal challenge. Courts are scrutinizing whether policies are clear, current, and consistently applied.

What Courts Will Be Asked to Decide In Cannabis-Related Disputes

As cannabis-related disputes increase, courts and arbitrators will be required to evaluate complex questions, including:

• Whether a positive drug test supports claims of on-duty use or impairment
• Whether the testing method selected was appropriate for the employment action taken
• Whether employer policies comply with applicable state cannabis protections
• Whether disciplinary actions were consistent, proportionate, and evidence-based
• Whether employers properly distinguished between lawful conduct and workplace risk

These determinations cannot be made by test results alone and require a detailed understanding of workplace drug testing programs, impairment science, and regulatory standards.

Why Workplace Drug Testing For Cannabis Is Essential

Cannabis cases increasingly sit at the intersection of science, policy, and employment law. Judges and juries often lack familiarity with how drug testing works in real-world workplace settings, what test results can and cannot prove, and how evolving laws affect employer obligations. Expert testimony is critical to explain industry standards, testing limitations, policy design, and reasonable employer practices.

As cannabis laws continue to evolve faster than workplace understanding, courts will rely on experts to clarify facts, challenge assumptions, and provide context that supports fair and informed decisions.

The Bottom Line for Cannabis Rescheduling

Cannabis rescheduling will not simplify workplace drug testing or employment decisions. It will increase scrutiny, accelerate litigation, and expose weaknesses in outdated policies and practices. Employers, employees, and attorneys who fail to understand the complexities of cannabis, hemp-derived products, and workplace testing programs will increasingly find those issues resolved in court.

About The Author

Nina M. French is a nationally recognized expert in workplace drug and alcohol testing, impairment, safety, and regulatory compliance. With 30+ years of experience, she provides litigation support and expert witness testimony, translating complex issues, policies, and testing practices into clear, defensible guidance for courts.

About Capwell Consulting Group

Capwell Consulting Group is a nationally recognized litigation support and risk mitigation consulting firm specializing in highly regulated industries. Our firm provides industry-leading guidance, research, reporting, and expert witness testimony for legal proceedings involving employment screening & negligent hiring, FCRA litigation, drug & alcohol testing, and medical device quality and regulatory compliance matters. With over three decades of industry experience, Capwell Consulting Group is a trusted advisor to employers, attorneys, and consumers around the globe.

The information published within is provided for educational purposes only. The information is not intended to or constitute legal advice; instead, all information, content, and materials are published for general informational purposes only and not considered the views of a particular expert or consultant of Capwell Consulting Group, LLC. © 2025 http://www.capwellconsulting.com