Happy Monday, team,
The week’s tip covers the potential impact of the DOJ’s recent marijuana reclassification on Georgia’s intoxication defense. The statute is clear at this point, but things could change if Governor Kemp signs the Senate Bill 220 aka “Putting Georgia Patient First Act” currently sitting on his desk. In short, the SB 220 “would replace THC percentages with standardized milligram dosing, making it easier for doctors to prescribe and for patients to use safely.” Fear not – I will keep you posted with updates!
JOHN’S GEORGIA TIP OF THE WEEK: Potential Impact of Looming Federal Marijuana Changes
What Changed?
- The U.S. Department of Justice (DOJ) recently issued an Order immediately moving marijuana products regulated by a state medical marijuana license to Schedule III of the Controlled Substances Act.
- The Order immediately reclassifies marijuana products already approved by the State of Georgia from a Schedule 1 drug (drugs with no currently accepted medical use and a high potential for abuse such as heroin, LSD, ecstasy) to a Schedule 3 drug (drugs with a moderate to low potential for physical and psychological dependence such as Tylenol with codeine, ketamine).
What is Georgia’s Current Law Re: Medical Marijuana?
- In Georgia, Medical marijuana is EXTREMELY limited and is only available to patients with certain qualifying conditions.
- Medical Marijuana products must not contain more than 5% THC.
- With respect to workers’ compensation, OCGA § 34-9-17 establishes grounds for denial of compensation for an injury or death due to intoxication by alcohol or being under the influence of marijuana – commonly referred to as the “intoxication defense.”
Georgia’s Intoxication Defense
- No compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription. O.C.G.A. § 34-9-17(b).
- If ANY amount of marijuana or a controlled substance as defined in paragraph (4) of Code Section 16-13-21, Code Sections 16-13-25 through 16-13-29, Schedule I-V, or 21 C.F.R. Part 1308 is in the employee’s blood within 8 hours of the time of the alleged accident as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana or controlled substance. O.C.G.A. § 34-9-17(b)(2).
IMPACT OF DOJ’S ORDER ON INTOXICATION DEFENSE
- O.C.G.A. § 34-9-17 explicitly states that the rebuttable presumption (that the accident and injury or death were caused by the ingestion of marijuana) is triggered if ANY amount of marijuana or a controlled substance. . . is in the employee’s blood within 8 hours of the time of the alleged accident” applies to all Schedule I-V drugs as defined by State and Federal law.
- Therefore, unless the State Legislature re-writes § 34-9-17, the DOJ’s Order reclassifying marijuana from a Schedule I drug to a Schedule III drug should have NO impact on Georgia’s intoxication defense because OCGA § 34-9-17 encompasses all Schedule I-V drugs.
Best Practice for Employers:
- MAINTAIN A ZERO-TOERLANCE DURG POLICY IN THE WORKPLACE (MEDICINAL OR OTHERWISE)!
As always, feel free to reach out if you run into any GA questions/issues this week.
Sincerely,
John Fennelly | Junior Partner