Podcasts

Summary

In this episode of Shoveling Smoke, Labor & Employment Associate Ben Kerns joins host Josh Friedman to break down what the DOJ’s move to reschedule marijuana actually means for employers. The discussion covers the narrow scope of the April 2026 order, Americans with Disabilities Act accommodation obligations when employees use medical cannabis, and why Department of Transportation drug testing requirements remain completely unchanged for safety-sensitive positions. They also address Ohio-specific implications for the Bureau of Workers’ Compensation drug-free workplace program, including the continued intoxication presumption and marijuana testing requirements for premium discounts.

Podcast First Aired: August 10, 2026

Transcript

Josh Friedman:
Welcome back to another edition of Frantz Ward’s podcast, Shoveling Smoke, where we discuss current legal issues affecting the business community and our daily lives. I’m Josh Friedman, your host for today’s edition. For today’s podcast, we have Ben Kerns, an associate at Frantz Ward in the Labor and Employment Group, to discuss the employment considerations and implications of marijuana being rescheduled to a Schedule III drug.

Ben Kerns:
Happy to be here, Josh. There are certainly some gaps regarding the interplay of employment laws and the rescheduling. I hope that we’ll be able to fill in some of those gaps of understanding today.

Josh Friedman:
Let’s start here. In plain English, what did the government actually do?

Ben Kerns:
So back in April, the Department of Justice issued an order that did two things. First, it immediately placed FDA-approved products containing marijuana and marijuana regulated under a state medical marijuana license into Schedule III of the Controlled Substances Act. Second, it kicked off an expedited administrative hearing set to begin on June 29th to consider rescheduling marijuana more broadly from Schedule I to Schedule III. So part one is done and narrow, part two is still being decided.

Josh Friedman:
Okay, so when my neighbor says weed is legal federally now and your employer can’t do anything about it?

Ben Kerns:
Your neighbor is wrong. Adult-use cannabis got no direct relief from this order. Anything outside the FDA-approved and state-licensed medical systems is still a Schedule I controlled substance. Rescheduling and legalizing are two completely different things. Schedule III is where drugs like ketamine and some anabolic steroids live. It’s still a controlled substance, still regulated, just less restrictively.

Josh Friedman:
So did anything change for employers given these changes?

Ben Kerns:
Somewhat. As we’ll discuss, there are broad implications for moving marijuana from Schedule I to Schedule III under the CSA.

Josh Friedman:
Okay, so let’s get into the part that I think keeps HR folks up at night: The Americans with Disabilities Act. Where does cannabis fit into the picture?

Ben Kerns:
This is where it gets a little tricky. Historically, the ADA hasn’t protected marijuana use, even medical use, because Schedule I status made it illegal under federal law. And the ADA doesn’t protect the quote-unquote “illegal” use of drugs. A move toward Schedule III starts to chip at that foundation, but it doesn’t knock it down, partly because recreational cannabis is still Schedule I.

Josh Friedman:
So practically, what changes for an employer right now?

Ben Kerns:
Honestly, keep doing what the ADA already asks of you. Engage in the interactive process where appropriate, assess whether a requested accommodation is reasonable, and evaluate whether the use poses a direct threat, especially in safety-sensitive roles.

Josh Friedman:
Let’s take those one at a time. The interactive process. What does that look like in real life?

Ben Kerns:
So say an employee tells you they use medical cannabis for a diagnosed condition, such as chronic pain or PTSD. Here’s the key insight. The underlying condition is very likely an ADA-covered disability, even if the cannabis use itself isn’t protected. That triggers your duty to have a good-faith conversation about accommodations. But notice: the accommodation is rarely, “let them use cannabis at work.” It’s often much more about accommodating the underlying disability some other way.

Josh Friedman:
And the reasonableness piece?

Ben Kerns:
That’s your undue hardship analysis. There’s a real difference between an employee asking to use a prescribed FDA-approved cannabis-derived medication off duty versus someone asking to be exempt from your drug testing policy entirely. Those are not the same requests, and you do not have to treat them the same.

Josh Friedman:
Then the direct threat analysis. That sounds like the employer’s strongest card.

Ben Kerns:
Yeah, so in safety-sensitive contexts, it is. If someone’s use would pose a direct threat to your health or safety that you can’t eliminate through reasonable accommodation, you’re on solid ground to act on that.

Josh Friedman:
Anything people forget here?

Ben Kerns:
State law. This is a big one. The rescheduling doesn’t override state medical marijuana or employment laws. A lot of states have their own protections for medical cannabis patients or for off-duty use. And those are frequently more protective than federal law and totally unaffected by the rescheduling. So, it’s a both/and, the federal ADA framework plus your specific state statute. Don’t analyze one without the other.

Josh Friedman:
Let’s pivot to the group I think has the most at stake: employers with DOT-regulated, safety-sensitive workers. Truck drivers, pilots, transit operators. What’s changed for them?

Ben Kerns:
The cleanest answer in this whole episode. Nothing. Nothing about your DOT testing obligations has changed.

Josh Friedman:
Nothing at all?

Ben Kerns:
Nothing. And here’s why structurally: the April 2026 order doesn’t rewrite the rules governing testing of safety-sensitive employees. It doesn’t change what happens when a CDL driver tests positive. The reason is simple: the DOT’s drug and alcohol testing framework was not amended. If the rule that governs your program didn’t change, your program doesn’t change.

Josh Friedman:
So a positive test is still a positive?

Ben Kerns:
Still a positive. It still triggers reporting and return-to-duty consequences. And here’s the one that trips people up constantly: the DOT has consistently held that state medical marijuana laws do not create a legitimate medical explanation for a positive drug test. That position is unchanged. A state medical card is still not a defense in the DOT testing context. Full stop.

Josh Friedman:
And for the employee who tests positive?

Ben Kerns:
They’re removed from safety-sensitive duty and have to complete the return-to-duty process before they can come back. That whole machinery is intact.

Josh Friedman:
So your advice to a DOT-regulated employer listening right now?

Ben Kerns:
Keep your current policies, testing panels, enforcement procedures, and consequences in place. And reaffirm your supervisor training on reasonable suspicion. There is no green light here. If anything, this is a moment to make sure your people understand that nothing changed because the headlines suggest otherwise.

Josh Friedman:
Now I want to get local for a minute because we’ve got a lot of Ohio employers listening. Ohio has this workers’ compensation program where you test for drugs, and you get a premium discount. Does the rescheduling news touch that at all?

Ben Kerns:
Short answer is no. That program runs on Ohio law and the BWC’s own program rules. It doesn’t run on the federal drug schedule. So, when the federal schedule moves, the BWC program doesn’t feel it.

Josh Friedman:
Walk me through why. Because on the surface, you’d think marijuana’s less restricted federally now. Maybe I don’t have to test for it to keep my discount.

Ben Kerns:
I get why people land here, but the requirement was never built on Schedule I in the first place. Two things hold it in place, and rescheduling touches neither. First, on the testing side, to keep the premium rebates, employers still have to include marijuana in their drug testing protocol, regardless of a prescription. And the BWC still won’t cover medical marijuana as a prescription medication, because it only covers medications that are FDA approved.

Josh Friedman:
And the second thing?

Ben Kerns:
The intoxication presumption. And this one’s pure Ohio statute. There’s a statutory rebuttable presumption that intoxication caused a workplace injury when there’s a positive post-injury drug test. And that still applies to marijuana.

Josh Friedman:
So the practical to-do for an Ohio employer is what?

Ben Kerns:
On rescheduling, change mostly nothing. Keep marijuana on your panel, know the BWC won’t reimburse medical marijuana, and know the intoxication presumption still has your back.

Josh Friedman:
What are the action items they cannot miss?

Ben Kerns:
A few. For all employers, don’t change your policies based on headlines. What’s actually changed is narrow. Medical and FDA-approved products only and recreational cannabis is still Schedule I.

Josh Friedman:
And on the ADA side?

Ben Kerns:
Keep running the three plays: interactive process, reasonableness assessment, direct threat analysis. Remember the underlying medical condition may be protected even when the cannabis use isn’t. And remember your state law may go further than federal law, so check both.

Josh Friedman:
And how about DOT employers?

Ben Kerns:
Keep testing, keep enforcing, keep the return-to-duty process intact. A state medical card still doesn’t excuse a positive test.

Josh Friedman:
And what about our Ohio folks?

Ben Kerns:
Same theme. On rescheduling, change nothing. Keep marijuana on the panel, the BWC still won’t reimburse medical marijuana, and the intoxication presumption still applies, assuming you meet the criteria. Talk to Josh about those requirements.

Josh Friedman:
That feels like the right note to end on. Thanks for walking us through it, it was genuinely clarifying.

Ben Kerns:
Anytime. And to anyone listening: resist the headline. The details are where the compliance lives.

Josh Friedman:
And that wraps up another episode of Shoveling Smoke. This podcast is available on frantzward.com, as well as Spotify and Apple Podcasts. Shoveling Smoke is a production of Evergreen Podcasts. Our recording engineer is Gray Longfellow. Our producer and audio engineer is Sean Rule Hoffman. For more information, please visit our website at frantzward.com. Disclaimer: this podcast is provided for educational purposes only. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speakers should not be attributed to Frantz Ward or its individual lawyers.