Weed at Work: Can Georgia Employers Still Drug Test?

Across the United States, a broad legal spectrum has developed regarding the use of marijuana, thus creating great uncertainty among employers that have long striven to maintain drug-free workplaces.

Federally, marijuana still is classified as a prohibited Schedule I substance under the Controlled Substance Act. In recent years, many states have decriminalized marijuana, some limiting its use to medicinal purposes, others allowing the full range of recreational uses. From an employment perspective, some states have implemented regulations prohibiting adverse employment action against workers for lawful marijuana use, and some even have banned employers from asking about a job applicants’ marijuana histories.

With this ever-evolving patchwork of state laws legalizing and destigmatizing marijuana use, Georgia employers understandably are confused about whether they can and should continue subjecting employees and applicants to drug testing for marijuana.

Quick Hits

  • Georgia allows patients with specific health conditions to use low-THC oil-based products that may contain up to 5 percent THC; meanwhile, over-the-counter CBD oil is limited to a maximum of 0.3 percent THC.
  • Georgia law does not limit the methods or means of drug testing available to employers, nor does Georgia law infringe on an employer’s ability to take adverse action against an employee who fails a drug test.
  • Employers may want to continue adhering to a structured drug-testing regimen for all employees working in safety-sensitive positions.

Legal Status of Marijuana in Georgia

In 2015, Georgia enacted a law allowing for patients with specific health conditions to use low-tetrahydrocannabinol (THC) oil-based products that may contain up to 5 percent THC. Recreational marijuana typically contains much higher levels of THC, thus giving users the “high” that may impair their abilities—e.g., at work. Despite passing this law as a policy allowance, Georgia did not establish any practical way for users to obtain this low-THC medical product. Patients could register with the Georgia Department of Public Health, but they had no legitimate way to obtain medically designed marijuana oil. Over 10,000 individuals are now registered under the state’s plan. Notably, smoking marijuana remains entirely illegal in Georgia—only oil products are allowed.

In 2019, the state attempted to develop a marijuana-deliverables supply chain by enacting legislation called “Georgia’s Hope Act,” which authorized the Georgia Access to Medical Cannabis Commission to grant six marijuana production licenses. Companies with these licenses then could produce and dispense medical marijuana oil compliant with the state’s requirements. However, progress was slow for multiple reasons, including legal challenges and the absence of existing brick-and-mortar production facilities.

Additionally, a November 2023 letter from the federal Drug Enforcement Administration (DEA) to pharmacies in Georgia stated that marijuana oil products would not be dispensed through any pharmacies on its registry, because DEA-registered pharmacies are prohibited from dispensing marijuana.

Delta-8 and Other Hemp-Derived Products

The Delta-8 THC products commonly available at chiropractors, spas, wellness and medical clinics, etc., typically contain concentrated amounts of hemp-derived cannabidiol (CBD) falling below the Georgia limit. This is in contrast to Delta-9 THC, which is designed off-market and often contains the intoxicating component of the cannabis plant, producing a “high” commonly associated with smoking or ingesting marijuana. These products are largely unregulated in Georgia, and thus they may contain unknown ingredients of unknown origin—and unknown safety implications.

More changes are afoot in Georgia, leading to even greater confusion about which types of THC products are allowable in the legally authorized marketplace. In November 2023, a Georgia appellate court ruled that Delta-8 THC and Delta-10 THC were not controlled substances under Georgia law. By contrast, also in 2023, the Georgia Senate proposed a bill to ban Delta-8 THC products, but the bill ultimately was not signed into law. All of these inconsistent policy initiatives have left Georgia residents (and employers) confused about the status of acceptable marijuana production and use in Georgia.

In late March 2024, however, the Georgia General Assembly passed a bill to bring more structure to the state’s incipient hemp industry. The bill, which passed with near unanimity and awaits the signature of Governor Kemp, limits all hemp sales (including CBD oil) to those twenty-one years of age and older, and it mandates testing and labeling of product ingredients, thus giving consumers more confidence about the authenticity of the contents.

Key Takeaways

Due to the prevalence of CBD and other low-dose products in Georgia, marijuana use has become rather common, even coming with a social belief that marijuana (all forms) is now legal in Georgia. Of course, that is incorrect. While CBD and other oil-based products “should not” produce a positive drug test result due to their low THC content, given the long-running absence of state-regulated supply chain management, the marijuana products floating throughout the local marketplace remain riddled with unknown contents. In short, a Georgia worker easily could fail a marijuana panel of a drug test, even if the employee thought the product was entirely lawful and harmless.

Georgia law does not limit the methods or means of drug testing available to employers, nor does Georgia law infringe on an employer’s ability to take adverse action against an employee who fails a drug test. Practically speaking, Employers may want to continue their adherence to a structured drug-testing regimen for all employees working in safety-sensitive positions in which an accident could pose a threat of harm to self or others. Many employers also continue to use structured post-accident testing for risk management and liability reasons. For non–safety-sensitive positions, employers may want to evaluate whether they still wish to mandate pre-employment testing, depending on the nature of the work and other job-market-based factors.

Ogletree Deakins’ Atlanta office and Drug Testing Practice Group will continue to monitor developments and will provide updates on the Drug Testing and Georgia blogs as additional information becomes available.

Authors: Gregory J. Hare (Atlanta); Abgail F. Schmadeke (Atlanta)

This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.