There has been growing interest in the therapeutic potential of psychedelic drugs in recent years. They are being evaluated for use in the treatment of conditions such as depression (including easing depression in patients with cancer), post-traumatic stress disorder, and other conditions. In a June 24, 2024, press release from The Rand Corporation involving a national survey on the use of various substances including psychedelics, an estimated 8 million American adults responded that they had used psilocybin in 2023.

If this National Survey is an indicator of where things stand, psychedelic use, including microdosing (discussed below), is here to stay. And, as has been the case with marijuana, individual states (including California, which has had two failed legislative attempts in the past two years) will take the helm in developing policies regarding the use of psychedelic substances. Like marijuana, psilocybin is classified as a Schedule 1 substance under the federal Controlled Substances Act of 1970 (CSA).¹

What is psilocybin?

Psilocybin is classified as a Schedule I substance under the CSA. Psilocybin binds to the brain receptors for the neurotransmitter Serotonin. Psilocin, conversely, is a metabolite of psilocybin broken down in the body’s digestive tract. Psilocin is also a Schedule 1 substance under the CSA. Psilocybin or psilocin are frequently referred to as “magic mushrooms.” Other psychedelic substances include peyote, MDMA, Kanna, Ibogaine (a hallucinogenic compound derived from the roots of a West African shrub), Ayahuasca, and lysergic acid diethylamide (LSD). 

What is “microdosing?”

Microdosing is consuming very small amounts or low doses (sub-hallucinogenic) of a psychedelic substance on a regular frequency. Microdosers of psilocybin can take small, measured amounts orally in a pure mushroom form as well as through ingestible vehicles like tea, chewable gummies, chocolates and capsules.

Is microdosing psilocybin legal?

Schedule I drugs are designated as those having a high potential for abuse and serve no legitimate medical purpose in the United States.² Because psilocybin is currently placed under Schedule I of the federal CSA, the use, sale, and possession of it (even in trace amounts) in the United States is illegal under federal law.

Since psilocybin use is illegal under federal law, microdosing with this psychedelic is also illegal. However, at the state and local level, there are legislation and city ordinances that have made enforcement the lowest priority, as well as “decriminalized” and/or legalized the use of psilocybin for certain purposes. Accordingly, these states and cities with laws that permit the recreational use of psilocybin conflict with existing federal law. In practice, this means that the locality permitting the recreational use of these substances will not expend resources enforcing federal law, and the risk of arrest and prosecution of those who choose to use psilocybin or other psychedelics is left to federal authorities to pursue.

Lowest law enforcement priority

In California, the growth, production, sale, and transportation of psilocybin is also currently illegal statewide.³ However, several California cities have bucked the state law by imposing no criminal sanctions for certain acts such as possession and personal use, and by also making its use the lowest law enforcement priority.

San Francisco and Eureka: These two California cities have declared that addressing psilocybin use is in the lowest law enforcement priority.

Berkeley: The City of Berkeley passed a resolution decriminalizing psilocybin (as well as the possession of all psychedelic entheogenic substances) other than peyote. However, the resolution does not allow sharing or gifting of these substances.

Oakland: Under Resolution No. 87731 CMS, which passed in June of 2019, no “city funds or resources” can be used “to assist in the enforcement of laws imposing criminal penalties for the use and possession of Entheogenic Plants by adults.” Additionally, the district attorney was called upon to “cease prosecution of persons involved in the use of Entheogenic Plants or plant-based compounds,” and to declare that the: “investigation and arrest of adult persons for planting, cultivating, purchasing, transporting, distributing, engaging in practices with, and/or possessing Entheogenic Plants or plant compounds on the Federal Schedule 1 list shall be amongst the lowest law enforcement priority.”

The City Council of Oakland additionally passed Resolution No. 88464 CMS on December 15, 2020 to urge the state legislature to immediately enact state laws to decriminalize or legalize the possession and use of entheogenic plants and fungi to allow local jurisdictions to authorize their citizens to engage in community-based healing ceremonies.⁴

Santa Cruz: The City Council of Santa Cruz, California unanimously passed Resolution No. NS-26,032 in January 2020, resolving that the city would “not expend its resources in the investigation and arrest of persons twenty-one (21) years of age and older solely for the personal use, personal possession, and personal cultivation of Entheogenic Plants and Fungi listed on the Federal Schedule 1 list and that such activities should be considered among the lowest law enforcement priorities for the City of Santa Cruz.” A similar resolution was passed by the city council in Santa Cruz the year before.

Arcata: On October 6, 2021, the Arcata City Council in California passed Resolution 212-17 declaring “the investigation and arrest of persons for planting, cultivating, purchasing, transporting, distributing, engaging in practices with, or possessing Entheogenic Plants and Fungi or plant compounds shall not be a public safety priority,” except “when other code violations are present such as a public disturbance, driving while under the influence, use in the presence of minors, or jeopardizing public safety.” Commercial sales and manufacturing remain prohibited. This resolution does not extend to “properties owned or leased by the California State University system.”

Legislative movement

Outside of California, legislation addressing psilocybin use has been introduced at the local and/or state level in the following states/cities:

Even the federal government is getting involved. The Federal Drug Administration (FDA) drafted guidance on clinical trials with psychedelic drugs. On June 23, 2023, the FDA published draft guidance to highlight fundamental considerations for researchers investigating the use of psychedelic drugs for potential treatment of medical conditions, including for psychiatric conditions or substance abuse disorders. This is the first FDA-drafted guidance to industries that presents considerations for designing clinical trials for psychedelic drugs.

What if employees are under the influence of psilocybin at work?

While microdosing psilocybin in the State of California and elsewhere as well as under federal law is illegal, employers may simultaneously be operating in cities or states where psilocybin is of the lowest law enforcement priority, decriminalized, and/or where it is being used “therapeutically” as a form of treatment in the therapeutic setting.

Recommended practices for handling an employee caught microdosing while at work (or being under the influence of psilocybin) are clear. However, employees with mental health challenges may claim that microdosing psilocybin moderates a potential type of disability such as depression (including those suffering from cancer) and anxiety. The ADA will not condone or require an employer to permit these employees to microdose as a reasonable accommodation. Nor has any state thus far passed a law requiring an employer to permit workers to microdose or otherwise utilize psilocybin at work (even if that individual may be living in the states of Colorado or Oregon).

In recent years, the FDA has identified psilocybin as a “breakthrough therapy” to treat severe depression.⁷ This raises the issue of whether an employer notified that an employee may be using psilocybin for depression or anxiety must provide any form of accommodation to the employee.

• First, to address the issue of microdosing in the workplace head on, an employer should ensure their company handbook for employees directly addresses the use of drugs and alcohol, including the use of drugs that employees might consider lawful, such as psilocybin (or other psychedelics) so that employees understand that engaging in such use is a potentially terminable offense.

• Second, employee assistance programs may aid an employee in managing their personal issues (much like most address substance abuse), as they impact the employee in the workplace. Doing so could include offering treatment options short of employees’ microdosing while at work.

• Third, for those employees working in safety-sensitive positions, impairment at work becomes a far more serious issue. The use of psilocybin can lead to altered states of consciousness and impaired cognitive function. And, generally, psilocybin and its use (including microdosing) in any safety-sensitive position would pose a risk of harm to the employee and others.

• Finally, other considerations about the discovery of an employee’s microdosing of psilocybin while at work involve handling the reporting of it. Employers should ensure their drug and alcohol policies apply evenly to all employees in the workplace.

Because the legal landscape around psylocibin is evolving, employers may begin to encounter this issue with frequency.

For now, of utmost importance is the employer’s assurance of a safe workplace, alongside its application of carefully articulated policies regarding the harm that could ensue from any type of drug use in the workplace.