Quick hits
- Georgia allows patients with specific health conditions to use low-THC oil-based products, which can contain up to 5 percent THC; Non-prescription CBD oil is now limited to a maximum of 0.3 percent THC.
- Georgia law does not limit the methods or means available to employers for drug testing, nor does Georgia law affect an employer's ability to take adverse action against an employee who fails a drug test.
- Employers may wish to continue to maintain a structured drug testing program for all employees who work in safety-related positions.
Legal Status of Marijuana in Georgia
In 2015, Georgia passed a law allowing patients with certain health conditions to use low-tetrahydrocannabinol (THC) oil-based products, which can contain up to 5 percent THC. Recreational marijuana typically contains much higher levels of THC, giving users a “high” that can impair their abilities, such as at work. Despite passing this law as a policy grant, Georgia has not created a practical way for users to obtain this low-THC medical product. Patients were able to register with the Georgia Department of Public Health but had no legitimate way to obtain medically developed marijuana oil. More than 10,000 people are now registered under the state plan. It is noteworthy that smoking marijuana remains completely illegal in Georgia – only oil products are allowed.
In 2019, the state attempted to create a marijuana delivery supply chain by passing a law called Georgia's Hope Act, which authorized the Georgia Access to Medical Cannabis Commission to issue six marijuana production licenses. Companies with these licenses would then be able to produce and distribute medical marijuana oil in accordance with state requirements. However, progress has been slow for several reasons, including legal challenges and the lack of existing brick-and-mortar production facilities.
Additionally, a November 2023 letter from the Federal Drug Enforcement Administration (DEA) to Georgia pharmacies stated that because DEA-registered pharmacies are prohibited from dispensing marijuana, marijuana oil products would not be dispensed through pharmacies on their registry.
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) that are below the Georgia limit. This is in contrast to Delta-9 THC, which is not available on the 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 therefore may contain unknown ingredients of unknown origin and unknown safety implications.
More changes are afoot in Georgia, creating even more confusion about what types of THC products are allowed on the legal market. In November 2023, a Georgia appeals court ruled that Delta-8 THC and Delta-10 THC were not controlled substances under Georgia law. In contrast, the Georgia Senate proposed a bill to ban delta-8 THC products, also in 2023, but the bill was ultimately not signed into law. All of these conflicting policy initiatives have left Georgia residents (and employers) confused about the state of acceptable marijuana production and use in Georgia.
However, in late March 2024, the Georgia General Assembly passed a bill intended to provide more structure to the state's emerging hemp industry. The bill, which passed nearly unanimously and is awaiting Gov. Kemp's signature, limits all hemp sales (including CBD oil) to those 21 and older and requires testing and labeling of product ingredients to provide consumers with greater confidence in the authenticity of the content.
The central theses
Due to the prevalence of CBD and other low-dose products in Georgia, marijuana use is widespread, despite the societal belief that marijuana (all forms) is now legal in Georgia. This is of course wrong. While CBD and other oil-based products “should not yield a positive drug test result” due to their low THC content due to the long-standing lack of government-regulated supply chain management, marijuana products circulating in the local market are still plagued with unknown content. In short, a Georgia worker could easily fail a marijuana drug test, even if the worker believes the product is completely legal and harmless.
Georgia law does not limit the methods or means available to employers for drug testing, nor does Georgia law affect an employer's ability to take adverse action against an employee who fails a drug test. In practice, employers may wish to continue to maintain a structured drug testing program for all employees working in safety-sensitive positions where an accident could pose a danger to themselves or others. Many employers continue to use structured post-incident testing for risk management and liability reasons. For non-safety positions, employers may want to consider whether they still want to require pre-employment testing, depending on the nature of the work and other labor market-related factors.
Ogletree Deakins' Atlanta office and Drug Testing Practice Group will continue to monitor developments and provide updates on the Drug Testing and Georgia blogs as additional information becomes available.
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