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EMPLOYER'S CORNER: Medical marijuana law could create legal issues for employers

Medical marijuana law could create legal issues for employers

On April 16, Gov. Nathan Deal signed into law “Haleigh’s Hope Act,” which legalized the use of medical marijuana to treat certain serious medical conditions. Georgia is the 36th state, in addition to Washington, D.C., to legalize marijuana extracts to treat illnesses.

The first question that many employers have is: Does this law make smoking marijuana legal? The answer is no -- the law does not permit the smoking of marijuana in Georgia.

The law does allow cannabis oil to treat people with certain serious medical conditions such as seizure disorders, cancer, multiple sclerosis, Crohn’s disease and sickle cell anemia. The law is named after Haleigh Cox, a girl with severe seizures whose family moved from Georgia to Colorado so that she could legally receive THC extracts for her condition.

The law places restrictions on the amount of THC that can be contained in the cannabis oil. The law also creates other restrictions on who may lawfully possess the cannabis oil. The Georgia Department of Public Health is in the process of creating a registry to implement the law as well.

For employers, the law has some very employer-friendly language regarding its application in the workplace. For example, the law specially allows employers to refuse to “accommodate the use ... of marijuana in any form.” The law also allows employers to make written “zero tolerance” policies regarding the on-duty or off duty use of marijuana or restricting employees from having a detectable amount of marijuana in their system while at work.

The intersection of this new law and others like it with the Americans with Disabilities Act, which prohibits discrimination of people with disabilities in employment, will provide a fertile ground for new law and cases as the law develops in this area.

What should employers do? If you come across this issue with an employee, consult an experienced employment lawyer. Employers also should ensure that their safety policies, job descriptions for safety sensitive positions and drug and alcohol polices conform to the state and federal laws. For employers operating in more than one state, employers should ensure that their policies are compliant for other states, as those state laws will likely vary from Georgia law.

Sarah Phaff is an employment law attorney in Atlanta and Macon at the national labor and employment law firm of Constangy, Brooks, & Smith LLP.

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