# Marijuana and NEMT Drivers in 2027: What DOT, Brokers, and State Law Allow

Canonical URL: https://nemtguide.com/guides/marijuana-and-nemt-drivers/ · Updated 2026-09-30

Legal cannabis does not change DOT rules. Drivers who need a CDL, and staff doing covered work for a transit agency funded by federal transit grants, may not use marijuana, and a medical card never excuses a positive test. Other NEMT drivers follow broker contracts, which bar driving impaired and often require marijuana screens, and state law, which in some states limits testing or firing over off-duty use.

- Drivers under DOT rules may not use marijuana on or off duty, and a medical card or dispensary receipt never turns a positive test negative.
- State-licensed medical marijuana moved to Schedule III on April 28, 2026, but DOT drug testing did not change.
- Broker contracts such as MTM Health's screen for marijuana and bar a driver who tests positive from carrying members.
- California, Connecticut, Minnesota, Nevada, New Jersey, New York, and Washington limit testing, hiring, or firing over off-duty use, each with its own exceptions.
- One written policy should ban use and impairment during work hours, test only where your rules allow, and document every sign of impairment.

Marijuana is legal for adults in many states, yet NEMT drivers answer to three sets of rules at once. DOT testing rules cover some drivers. Broker contracts cover nearly all of them. State employment law decides what you may test for and what you may do with a result. The three do not always agree, so start by sorting out which rules reach each driver.

## Which marijuana rules apply to each driver

| Your driver | Rules that apply | What it means for marijuana |
|---|---|---|
| Needs a CDL, such as for a vehicle designed for 16 or more people including the driver | FMCSA testing rules (49 CFR part 382) and DOT test procedures (49 CFR part 40) | No marijuana use, on duty or off. Testing is required, and state cannabis law does not change it. |
| Drives, dispatches, or maintains vehicles under contract for a transit agency funded under 49 U.S.C. 5307, 5309, or 5311 | FTA testing rules (49 CFR part 655) and part 40 | The same DOT rules for that work, in any size of vehicle |
| Drives a sedan, minivan, or wheelchair van that needs no CDL, for brokers, health plans, facilities, or private pay riders | Broker contracts, state Medicaid rules, and state cannabis and testing laws | A non-DOT program built from your contracts and your state's law |

FMCSA's testing rules follow the CDL (49 CFR 382.103 and 383.5), and FTA's follow the transit contract (49 CFR 655.3). Most NEMT drivers fall in the third row. For the full testing rules in each group, see [NEMT driver drug testing](https://nemtguide.com/guides/nemt-driver-drug-testing/) and [do NEMT drivers need a CDL](https://nemtguide.com/guides/do-nemt-drivers-need-a-cdl/).

Federal Medicaid law adds one duty for every company in the third row. Each state must make sure every NEMT provider it pays has a process to address any violation of a state drug law (42 U.S.C. 1396a(a)(87)). Your broker agreement is usually where that process shows up.

## Where marijuana stands under federal law in 2026

Marijuana is still a controlled substance under federal law. On April 28, 2026, a Justice Department order moved two kinds of marijuana from Schedule I to Schedule III: marijuana in drugs the FDA has approved, and marijuana made or sold under a state medical marijuana license. All other marijuana, including adult-use products, stays in Schedule I.

A broader change is still pending. The DEA set a hearing, starting June 29, 2026, on its 2024 proposal to move all marijuana to Schedule III. As of September 30, 2026, no final rule had followed in the Federal Register.

Neither step changed DOT testing. In an update posted February 25, 2026, DOT said its testing process and rules would not change until rescheduling is complete, and that it is still unacceptable for people in safety-sensitive transportation jobs to use marijuana. DOT's answer after the April order is below.

## DOT-covered drivers: no marijuana, with or without a card

Every DOT drug test screens for five classes, and marijuana metabolites are the first on the list (49 CFR 40.82). A lab-confirmed marijuana positive is verified as positive unless the driver shows a legitimate medical explanation, which means a legally valid prescription consistent with the Controlled Substances Act (49 CFR 40.137).

State-licensed marijuana never meets that standard. In a Q&A last updated May 15, 2026, DOT's Office of Drug and Alcohol Policy and Compliance answered the question directly. Even after rescheduling, marijuana from a state program is not an FDA-approved drug, so it cannot be prescribed. A state medical marijuana card, a doctor's recommendation or certification, and a dispensary receipt do not count. DOT added that marijuana use is not compatible with safety-sensitive work.

Two more rules close the gaps:

- **Doctor's recommendations.** The medical review officer may not verify a test as negative because a doctor recommended a Schedule I drug under a state medical marijuana law (49 CFR 40.151(e)). DOT's May 2026 answer treats a doctor's recommendation or certification for state-licensed marijuana the same way.
- **Hemp and CBD.** Using hemp or any other non-prescription marijuana product is not a legitimate medical explanation (49 CFR 40.151(f)). DOT's CBD notice of February 18, 2020 warns that CBD labels may understate their THC and that the FDA does not certify THC levels, so a driver who uses CBD risks a verified positive.

After a positive result, a DOT-covered driver leaves covered work and returns only through a substance abuse professional, a return-to-duty test, and follow-up tests. CDL drivers' violations also go to the [FMCSA Clearinghouse](https://nemtguide.com/glossary/fmcsa-clearinghouse/). Keep DOT and non-DOT tests fully separate, with their own specimens and forms (49 CFR 40.13).

## What brokers and Medicaid programs require

For drivers outside DOT rules, broker contracts set the baseline, and most treat marijuana like any other impairing drug. As of September 2026:

| Program | What it says about drugs and marijuana |
|---|---|
| MTM Health, standard provider agreement (January 1, 2023 version posted by Pennsylvania) | A drug screen is a urine test meeting HHS or DOT requirements that screens at least for marijuana, cocaine, amphetamines, opioids, and PCP. Drivers and attendants may not use drugs or be under their influence at any time while providing MTM trips. A written substance free workplace policy with tests before hire and at random. A refusal counts as a positive. A driver who tests positive may no longer carry members, and a positive screen in the past 5 years bars a driver. |
| CareOregon, transportation provider manual (version 1.3, February 2024) | A drug-free workplace and anti-drug policy for all employees and drivers. Drivers may not work while consuming or under the influence of alcohol, marijuana, illegal drugs, or medicine not prescribed to them. A refusal or positive result disqualifies the driver. |
| Louisiana Medicaid, Medical Transportation manual (sections 10.3 and 10.4, issued July 14, 2025) | A five-panel drug screen every year and on reasonable suspicion, with results sent straight to the broker by the testing agency. Drivers may not use or be under the influence of marijuana while driving or in control of a vehicle, including medical marijuana allowed by state law. Crossing state lines with medical marijuana, and unlawful use or possession of marijuana at work, are also barred. |
| Virginia DMAS, NEMT driver and vehicle requirements (updated May 26, 2026) | No use or abuse of illegal drugs, or of prescription drugs that affect performance, on duty or at any time. Drivers found using on duty are barred from carrying Medicaid members, and the broker keeps a record of them. |
| Portland, Oregon, City Code 16.40.710 | Every NEMT company permit application must include the company's zero-tolerance drug policy |

Two details deserve a question to your broker. First, "illegal drugs" is unclear in a state where adult use is legal, because marijuana remains illegal under federal law. Second, MTM's agreement lets a driver work on a properly prescribed medicine with written word from their medical provider that it will not affect driving. A state medical marijuana certification is not a prescription under DOT's reading, so ask MTM in writing how it treats one.

CareOregon's manual also shows how reports reach you. Its brokerage cannot order a test on a third party's allegation alone. It tells the provider, who must investigate, and it may ask that the driver be suspended while the investigation runs. For each broker's full driver list, see [NEMT driver requirements](https://nemtguide.com/guides/nemt-driver-requirements/).

## State cannabis laws that protect drivers off duty

Several states limit what a private employer may do about off-duty cannabis use. Almost all of them leave DOT-required testing alone, and many carve out safety jobs. As of September 2026:

| State | What the law protects | What you can still do |
|---|---|---|
| California (Government Code 12954, operative January 1, 2024) | Off-job cannabis use away from work, and tests that find only nonpsychoactive metabolites. You may not ask applicants about past use. | Ban use, possession, and impairment on the job. Use pre-hire tests that do not screen for inactive metabolites. Test where a state or federal law requires it, including for federal funding, a federal license, or a federal contract. |
| Connecticut (General Statutes 21a-422o to 21a-422s, effective July 1, 2022) | Off-duty use, unless you have a written policy given to every employee. A positive for the THC metabolite alone cannot be the sole reason to act, with limits. | None of these protections apply to exempted employers, whose primary activity is transportation or delivery, or health care or social services. They also do not apply to exempted jobs, such as caring for medical patients or vulnerable people. |
| Illinois (410 ILCS 705/10-50 and 820 ILCS 55/5) | Off-premises use of products legal in Illinois during nonworking and non-call hours, except where section 10-50 allows action. A worker's reasonable chance to contest a finding that they were impaired. | Adopt reasonable zero-tolerance or drug-free workplace policies, including drug tests and random tests, applied without discrimination |
| Minnesota (Statutes 181.938 and 181.951) | Off-premises use during nonworking hours. No cannabis test as a condition of hire unless a law requires one. | Test for cannabis in safety-sensitive jobs, jobs giving face-to-face care to vulnerable adults or patients, and jobs where law requires driver testing. Random tests only in safety-sensitive jobs. A written testing policy first. |
| Nevada (NRS 613.132) | Applicants whose pre-hire screen shows marijuana | Refuse to hire for a job that requires driving where law requires testing, or one that in your judgment could affect the safety of others. A new hire tested in the first 30 days may take a second test at their own cost, and you must consider it. |
| New Jersey (N.J.S.A. 24:6I-52, amended by P.L.2025, c.325, approved January 20, 2026) | Use of cannabis, and the presence of metabolites alone | Test before hire, at random, on reasonable suspicion, on observable signs, or after a work accident. The test must pair an objective method, such as a blood, urine, or saliva test, with a physical evaluation by a person certified to judge impairment. |
| New York (Labor Law 201-d; labor department FAQ, October 2021) | Legal use off duty, off premises, and without your equipment or property | Act on specific, articulable symptoms of impairment at work. Ban use and possession during work hours, on call, and in company vehicles. Test for cannabis only where a law requires it or another exception applies. |
| Washington (RCW 49.44.240, effective January 1, 2024) | Applicants, in initial hiring only: off-job use, and tests that find only nonpsychoactive metabolites | Test after accidents and on suspicion. Exclude applicants for safety-sensitive jobs where impairment risks death, if you name those jobs before anyone applies. |

States with medical cannabis laws protect certified patients in narrower ways:

| State | What the law protects | What you can still do |
|---|---|---|
| Arizona (ARS 36-2813 and 23-493.06) | A cardholder's status, and a registered patient's positive test | Act when the patient used, possessed, or was impaired at work or during work hours. With a testing policy, keep a worker you believe in good faith is using an impairing drug out of a safety-sensitive job, which includes operating a motor vehicle. |
| Florida (Statutes 381.986(15)) | No job protection: no duty to accommodate medical use at work, and no lawsuit for wrongful discharge or discrimination under this law | Run a drug-free workplace program |
| Pennsylvania (Medical Marijuana Act, sections 510 and 2103) | A worker's status as a certified patient | Discipline a worker under the influence at work whose conduct falls below the job's standard of care. Bar a patient from any duty that could create a public health or safety risk while under the influence. |
| Virginia (Code 40.1-27.4) | Lawful use of medical cannabis oil under a practitioner's written certification | Act on work impairment, and bar possession during work hours |

Three points from these tables matter most for NEMT:

- **Safety exceptions.** Minnesota, Nevada, Washington, Connecticut, and Arizona all make room for jobs where impairment could hurt someone. Minnesota defines a safety-sensitive job as one where impairment would threaten anyone's health or safety, and Arizona lists operating a motor vehicle by name. Washington's exception works only for jobs you identify before the application.
- **How you test.** California and Washington push pre-hire testing toward methods that do not screen for nonpsychoactive metabolites. Washington's legislature found those metabolites can reflect use up to 30 days earlier. New Jersey requires a physical evaluation. Minnesota requires a written policy first and allows applicant tests only after a job offer.
- **Who is covered.** New York's labor department says its law does not cover independent contractors. Connecticut's cannabis workplace law counts them as employees. Your [1099 or W-2 choice](https://nemtguide.com/guides/nemt-drivers-1099-or-w2/) can change your answer.

Check your own state's law before you rely on either table, and see your [state guide](https://nemtguide.com/states/) for its Medicaid rules.

## Impairment at work is never protected

No state law above lets a driver work impaired. California's law says it does not permit an employee to possess, be impaired by, or use cannabis on the job. New Jersey's says it does not allow driving under the influence of cannabis. Illinois lets you act on a good faith belief that a worker is impaired, based on specific symptoms such as speech, coordination, demeanor, or careless operation of equipment.

Driving laws are stricter still. In Washington, a driver commits DUI with a blood THC concentration of 5.00 or higher within two hours of driving, and being entitled to use cannabis under state law is no defense (RCW 46.61.502).

Proving impairment takes more than a test. New York's labor department says a cannabis test cannot show impairment, and the smell of cannabis alone is not evidence of it. New Jersey's Cannabis Regulatory Commission says there is no perfect test for present cannabis impairment. Its guidance, issued September 9, 2022, pairs a test with a written record of observed behavior and physical signs, and it offers a sample reasonable suspicion observation form.

## When your broker contract and state law disagree

The conflict is real in some states. MTM's agreement screens for marijuana and removes a driver who tests positive. New York bars cannabis testing unless a law or another exception allows it, and New Jersey will not let a positive test stand alone. A broker contract is not a law, so the state exceptions may not cover it. Work through it in this order:

1. **Get the broker's rule in writing.** Ask how it handles a THC positive in your state, and whether it accepts a test that meets your state's method rules.
2. **Match each exception to the job.** Look for a safety-sensitive or driving exception, a federal contract or funding exception, and any law that requires testing for your drivers.
3. **Move the conflicted test, not the safety rule.** Where state law limits pre-hire tests, keep testing after accidents and on reasonable suspicion, which most of these laws allow. New York limits cannabis tests even then.
4. **Ask an employment lawyer in your state** before you refuse to hire or fire anyone over a THC result alone.
5. **Keep the answers.** File the broker's reply and the lawyer's advice with your policy.

## Accidents, injuries, and workers' comp

Marijuana can decide a workers' comp claim after a crash. In Florida, benefits are not payable when an injury was caused mainly by intoxication or by drugs a physician did not prescribe (Statutes 440.09(3)). A confirmed positive drug test creates a presumption that the drug caused the injury. With a drug-free workplace program, the worker can rebut it only by showing no reasonable hypothesis that the drug contributed. A refusal to test creates the same presumption (440.09(7)). Florida also bars workers' comp from paying for medical marijuana (381.986(15)(f)).

Other states allow a test after an accident even where they limit testing otherwise. Minnesota's reasonable suspicion rule covers an employee who was hurt, caused another employee's injury, or caused or was driving a vehicle in a work accident (181.951). New Jersey allows a test after a work-related accident the employer investigates.

Book the test early and write down what you saw. The [incident report form](https://nemtguide.com/templates/nemt-incident-report-form/) keeps the details together, and [workers' comp for NEMT](https://nemtguide.com/guides/workers-comp-for-nemt/) covers the rest of the claim.

## How to write a marijuana policy for NEMT drivers

1. **Sort every role.** Mark each driver, attendant, dispatcher, and mechanic as FMCSA, FTA, or non-DOT, using the first table. Owners who drive count too: MTM's agreement requires the same driver file for owner-drivers.
2. **Collect every broker's drug clause.** Note what each one tests for, when, and what a positive means.
3. **Check your state and city.** Use the state tables above, and add local rules such as Portland's zero-tolerance policy requirement.
4. **Ban use and impairment during work.** Cover work hours, breaks, on-call time, and company vehicles. New York, Connecticut, and Minnesota allow rules like these.
5. **Decide what you test for, and how.** For non-DOT tests, pick methods your state accepts, such as pre-hire tests that do not screen for nonpsychoactive metabolites in California and Washington, or a blood, urine, or saliva test plus a physical evaluation in New Jersey.
6. **Train supervisors to document impairment.** Record speech, coordination, behavior, and driving, with the time and a witness, before you order a test.
7. **Say how medicine and medical cards are handled.** DOT drivers may not use marijuana at all. For other drivers, follow your state's patient protections and each broker's prescription rule.
8. **Keep DOT and non-DOT testing apart,** with separate specimens and forms (49 CFR 40.13).
9. **Apply it the same way to everyone.** Illinois requires nondiscriminatory policies, and Minnesota bars arbitrary testing.
10. **Have a lawyer review it, then collect signatures** from every driver before it takes effect.

The [NEMT drug and alcohol policy template](https://nemtguide.com/templates/nemt-drug-and-alcohol-policy/) has the sections to fill in. Keep each driver's signed copy in the [driver qualification file](https://nemtguide.com/templates/nemt-driver-file-checklist/), and screen new hires with [how to hire NEMT drivers](https://nemtguide.com/guides/hire-nemt-drivers/).

## What could change next

- **Full rescheduling.** A final DEA decision on moving all marijuana to Schedule III could come after the hearing set to begin June 29, 2026. DOT has said it will tell the industry when its process changes.
- **DOT rules.** Part 40 changes only by a DOT rule. Until one appears, labs still test for marijuana, and medical review officers still reject state-licensed products as an explanation.
- **State law.** New Jersey's January 2026 amendment has its Cannabis Regulatory Commission set impairment evaluator standards with the state Department of Labor and Workforce Development. Check for those standards before you build a New Jersey testing program.
- **Broker contracts.** Brokers update provider agreements and manuals often. Re-read the drug clause whenever you sign a new version.

## Frequently asked questions

### Can NEMT drivers use medical marijuana?

Drivers under DOT rules cannot. On May 15, 2026, DOT's drug testing office said a state medical marijuana card, a doctor's certification, or a dispensary receipt never makes a positive DOT test negative, even after state-licensed medical marijuana moved to Schedule III. For other drivers it depends on your state and your brokers. Louisiana Medicaid bars NEMT drivers from driving under the influence of medical marijuana, while Arizona and Pennsylvania protect certified patients but let you act on impairment at work.

### Can I drug test NEMT drivers for marijuana where it is legal?

Usually, but the rules differ by state. DOT-covered drivers must be tested. In New York, you may test for cannabis only when a law requires it or another exception in Labor Law 201-d applies. New Jersey requires an objective test, such as blood, urine, or saliva, plus a physical evaluation of impairment. Minnesota treats cannabis as a tested drug in safety-sensitive jobs, and California and Washington limit action on tests that find only nonpsychoactive metabolites.

### Can a CBD product make a driver fail a drug test?

Yes. DOT tests for marijuana, not CBD, but its February 18, 2020 notice warns that CBD labels can be wrong and that the FDA does not certify their THC levels. A driver who used only CBD can still test positive, and the medical review officer will verify the result as positive. Hemp and other non-prescription marijuana products are never a valid explanation on a DOT test (49 CFR 40.151).

### Can I fire a driver who tests positive for THC but seems fine?

It depends on who covers the driver. Under DOT rules, a verified positive removes the driver from covered work. MTM Health's standard contract bars a driver who tests positive from carrying its members. But in New Jersey a positive test alone cannot support discipline, New York says a cannabis test cannot prove impairment, and Connecticut limits action on a THC metabolite result outside its exempted employers. Ask an employment lawyer before you act.

### Did marijuana rescheduling change DOT drug testing?

No. On April 28, 2026, marijuana in FDA-approved drugs and marijuana under a state medical license moved to Schedule III. DOT still tests for marijuana under 49 CFR part 40 and says a state-licensed product cannot explain a positive result. The DEA set a hearing, starting June 29, 2026, on moving all marijuana to Schedule III, and as of September 30, 2026 no final rule had followed.

### Do state cannabis job protections cover 1099 drivers?

Not always. New York's Labor Law 201-d protects employees, and the state labor department says independent contractors are not covered. Connecticut counts independent contractors as employees in its cannabis workplace law. Broker rules apply either way: MTM Health's standard contract requires a full driver file, drug test results included, for every driver and attendant, including owners who drive.

### Can I refuse to hire a driver who uses marijuana off duty?

In some states, no. California bars hiring decisions based on off-job cannabis use, New York bars action on legal off-duty use, and Minnesota bars refusing to hire for off-premises use during nonworking hours. Nevada and Washington protect applicants who test positive, except in some safety jobs. Illinois protects legal off-duty use but allows reasonable zero-tolerance policies, and Connecticut exempts transportation and health care employers. Check your state first.

## Official resources

- [DOT ODAPC: Part 40 Q&A on state licensed marijuana products](https://www.transportation.gov/odapc/part40QA/40-137)
- [DOT ODAPC: CBD notice](https://www.transportation.gov/odapc/cbd-notice)
- [eCFR: 49 CFR part 40 (how DOT tests are collected, tested, and reviewed)](https://www.ecfr.gov/current/title-49/subtitle-A/part-40)
- [FMCSA Drug and Alcohol Clearinghouse](https://clearinghouse.fmcsa.dot.gov/)
- [New York Department of Labor: Adult use cannabis and the workplace FAQ](https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf)
- [New Jersey Cannabis Regulatory Commission: Workplace impairment guidance](https://www.nj.gov/cannabis/documents/businesses/Business%20Resources/Workplace%20Impairment%20Guidance%20922.pdf)
- [California Government Code section 12954](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=12954.)
- [Minnesota Statutes 181.951 (drug, alcohol, and cannabis testing)](https://www.revisor.mn.gov/statutes/cite/181.951)