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With the enactment of “Haleigh’s Hope Act” on April 16, 2015, Georgia became the 26th jurisdiction to decriminalize medical marijuana use. The act, which became effectively immediately upon signature by Georgia Gov. Nathan Deal, legalizes such use under Georgia law in connection with nine specified medical conditions, including end-stage cancer, amyotrophic lateral sclerosis (Lou Gehrig’s Disease), seizure disorders, multiple sclerosis, Crohn’s disease, mitochondrial disease, Parkinson’s and sickle cell disease.
The act does not establish employment protections for medical marijuana use. In fact, in contrast to legislation in other states such as Arizona, Delaware, Minnesota and New York that limit employer action, Georgia’s law takes a very employer-favorable approach. Specifically, the measure allows employers to prohibit on-duty and off-duty use and to take adverse action on the basis of a positive test result: “Nothing in [the Act] shall require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in any form, or to affect the ability of an employer to have a written zero tolerance policy prohibiting the on-duty, and off-duty, use of marijuana, or prohibiting any employee from having a detectable amount of marijuana in such employee’s system while at work.”
This does not mean Georgia employers can forego legal obligations to engage in an interactive dialogue with employees who are medical marijuana users under Georgia’s law and where possible reasonably accommodate employees with respect to underlying medical conditions. Satisfying that obligation will in part require employers to work with testing vendors as to how positive marijuana results caused by medical marijuana use will be reported by medical review officers, what information beyond the result will be reported if any, and what if any authorizations employers will need to obtain information beyond results.
Additionally, Georgia employers should review workplace drug testing policies to ensure inclusion of carefully worded definitions of illegal drugs. Policy review would also be prudent to avoid reference to prescription drug language that could broadly be interpreted as contradicting any zero tolerance substance abuse and testing policy.
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