Cannabis in the Workplace? Georgia Employers Confused Over Testing for Marijuana Use

By: Peter J. Galgano

Federally, marijuana is still classified as a prohibited Schedule I substance under the Controlled Substance Act.[1] This means marijuana is federally not accepted for medical or recreational use.[2] However, on the state level, many states have decriminalized marijuana, allowing it for either medicinal or full recreational purposes.[3] Some states have even banned employers from inquiring about a job applicant’s history with marijuana.[4] With an evolving legal landscape and a societal destigmatization of cannabis, employers are trying to grasp how to tread through unprecedented waters.[5] The most recent state to entrench themselves in this broad legal spectrum is Georgia, the Peach State.[6] 

Georgia has been one of the most restrictive or conservative states when it comes to legalizing marijuana.[7] Georgia has failed to legalize marijuana use for recreational or medicinal purposes.[8] The state of Georgia only permits the use of low-THC marijuana oil.[9] Yet, across the state of Georgia, employers are muddled over whether they still can and should enforce employees and applicants to cannabis drug tests.[10] In March 2024, the Georgia General Assembly raised the age to buy legal marijuana to those twenty-one years or older.[11] The bill passed almost unanimously and awaits the signature of Governor Brian Kemp of Georgia.[12]  This comes after a 2023 Georgia Appellate decision that ruled Delta-8 and Delta-10 THC products are not controlled substances under Georgia law.[13]  However, Delta-9 THC products are off market and unregulated in the Georgia.[14]  Marijuana use and production has become prevalent in Georgia but employers are confused over what is considered acceptable cannabis use.[15]

An issue is many Georgia residents use unregulated marijuana products in which they believe are legal.[16] This can cause a Georgia employee to fail a drug test for marijuana thinking that they were using a lawful product.[17] Georgia law permits employers to drug test if they want to, and it does not limit the method or means.[18] Generally, you can be fired for failing a drug test in Georgia with a few exceptions such as having a valid prescription for medical marijuana.[19] Employers are finding themselves at a crossroads when it comes to administering drug tests for marijuana due to Georgia’s inconsistent policies.[20] The divide between whether employers continue a drug-testing scheme will be based on the nature of the work or an employee’s position.[21] Confusion over THC oil percentages and determining what is legal has caused nothing but stress for Georgia employers.[22]

Georgia has a voluntary drug testing law that is not required, but if an employer chooses to comply, they can qualify for a worker’s compensation premium discount.[23] This premium discount requires drug testing for marijuana.[24] An employer is not required to allow the use of marijuana on or off the job and under law can impose zero-tolerance policies.[25] An employer has full discretion on whether to impose strict cannabis policies in the workplace.[26]

In conclusion, the state of Georgia should legalize marijuana in order to alleviate the stresses of employers.[27] Georgia employers are faced with the challenge of determining compliance, choosing which employees are subject to drug tests, or dealing with the burden of mandating drug testing programs for marijuana in general.[28]

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[1] See About Cannabis Policy, APIS, https://alcoholpolicy.niaaa.nih.gov/about/about-cannabis-policy (last visited Apr. 1, 2024).

[2] See id.

[3] See Gregory J. Hare et al., Weed at Work: Can Georgia Employers Still Drug Test?, Nat’l L. Rev. (Apr. 1, 2024), https://www.natlawreview.com/article/weed-work-can-georgia-employers-still-drug-test.

[4] See id.

[5] See id.

[6] See Fox5 Atlanta Publishing Team, Lawmakers Propose Raising Georgia Legal Age to Buy Medical Marijuana to 21, Fox5 (Jan. 18, 2024, 6:16 AM), https://www.fox5atlanta.com/news/medical-marijuana-georgia-legal-age-senate-bill.

[7] See Georgia Marijuana Laws 2024, Ga. Cannabis Info., https://georgiastatecannabis.org/laws (last visited Apr. 1, 2024).

[8] See id.

[9] See id.

[10] See Fox5 Atlanta Publishing Team, supra note 6.

[11] See id.

[12] See Hare, supra note 3.

[13] See Dawn White, Georgia Court of Appeals Rules Delta 8, Delta 10 THC Products are not Controlled Substances, 11alive (Nov. 3, 2023, 8:23 PM), https://www.11alive.com/article/news/local/georgia-delta-thc-ruling/85-fc1e8246-7a15-49a3-8b7d-5acafe7fe9dc.

[14] See Hare, supra note 3.

[15] See White, supra note 13.

[16] See Whitt Steineker & Mason Kruse, Ga. Needs to Resolve Cannabis Counsel Confusion, Bradley (Apr. 17, 2023), https://www.bradley.com/insights/publications/2023/04/ga-needs-to-resolve-cannabis-counsel-confusion.

[17] See Hare, supra note 3 (“[G]iven the long-running absence of state-regulated supply chain management, the marijuana products floating throughout the local marketplace remain riddled with unknown contents.”).

[18] See Lisa Guerin, Georgia Laws on Workplace Drug Testing, NOLO, https://www.nolo.com/legal-encyclopedia/georgia-laws-workplace-drug-testing.html (last visited Apr. 1, 2024).

[19] See id.

[20] See Hare, supra note 3.

[21] See id.

[22] See id.

[23] See Georgia – Considerations for Marijuana in the Workplace, Nat’l Drug Screening, Inc., https://www.nationaldrugscreening.com/marijuana-considerations/georgia/ (last updated on Apr. 18, 2023).

[24] See id.

[25] See id.

[26] See id.

[27] See id. (highlighting the difficulties Georgia employers are faced with due to Georgia’s cannabis laws).

[28] See id.

BOEING EMPLOYEES ALLEGE EXPOSURE TO TOXIC CHEMICALS IN THE WORKPLACE CAUSED REPRODUCTIVE HARM AND BIRTH DEFECTS

By: Angelique Bouzalakos

On February 16, 2024, a Washington state judge refused to give Boeing a “free pass” in a lawsuit over alleged birth defects caused by exposure to toxic chemicals in the workplace.[1] The Judge is set to review whether Boeing had a duty to its employees future children “based on foreseeable harm.”[2] The Judge expressed his skepticism at “the Boeing Co.’s assertion that Washington courts have never recognized employers as owing a duty of care to workers’ unconceived children.”[3] The Judge asserted that if what the plaintiffs allege is true, and Boeing knew about the toxic chemical and its potential to cause birth defects, then they should not get a “free pass.”[4]

BACKGROUND

            In 1980, one of the top doctors at Boeing, Dr. Barry Dunphy, attempted to alert the company to a potentially fatal problem.[5] The doctor found that during the normal course of their employment, “tens of thousands” of workers were being exposed to hazardous amounts of toxic chemicals.[6] Among his findings, Dr. Dunphy wrote that these toxic chemicals “may result in future ‘outbreaks’ of serious illness – including sterility, fetal abnormalities, stillbirth, life-long chronic illness, cancer and death.”[7] The doctor’s notes indicated that Boeing’s President Malcolm Stamper was neither sympathetic nor happy to hear the news.[8] These notes are now being reviewed, among other documents, as evidence in a number of lawsuits all alleging that the doctor’s warnings indeed came true.[9]

            Three families, whose children all suffer from some kind of ailment (e.g., heart conditions, neurological conditions, genetic disorders), sued Boeing, alleging that Boeing failed to protect them from these toxic chemicals, and as a result, caused birth defects in their children.[10] It is noted that Dr. Dunphy’s warning “is one of the earliest documents showing some company experts have long suspected the toxins… pose risks not just to workers, but their unborn children too.”[11] Among the toxins, some are heavy metals (e.g., cadmium, lead, and chromium), and some are solvents (e.g., toluene, xylene, petroleum distillates, etc.).[12] Some of these chemicals that the lawsuits identify are still used and present at the Boeing plant where the plaintiffs worked.[13]

            Lead plaintiff’s attorney Michael Connett of Waters Kraus & Paul argues that workers are still at risk because Boeing has failed to “communicate the hazards and adequately enforce safety rules.”[14] Over 40 years ago, Dr. Dunphy insisted the company would face serious consequences due to their “impotent occupational health program” and sorely needed an “effective Industrial Hygiene program.”[15]

            The company maintained that there is “mixed scientific evidence” to support the connection between the chemicals and the birth defects, and that it is entirely dependent upon the “chemical, the manner of exposure and the dose.”[16] According to representatives, the company maintains a list of “chemicals of concern” for “reproductive toxicity,” which the depositions show, and illustrate the company has been keeping track of this risk for many years.[17] Although the company “instituted monitoring programs to ensure worker exposure levels were below regulatory maximums,” it is unclear whether workers are truly aware of their exposure risk.[18] In 2021, toxicologists at Boeing did an analysis of more than 100 chemical information sheets, and added the line “may be toxic to reproduction” in their database entry.[19] Connett said that employees are used to taking some risks, but that they are “consistently not prepared to also risk their children.”[20]

             Boeing’s attorneys assert that Washington courts “have recognized a preconception of duty of care only in healthcare cases.”[21] However, Washington state Judge Dixon questioned Boeing’s attorneys on why it would not also apply in the employment setting and insisted that an alleged birth defect risk is not “distinguishable from any other kind of physical, on-the-job risk that employers are obligated to warn their workers about.”[22] As the Judge opined, Boeing could have just “post[ed] a sign or something” about the warnings and health dangers of the chemicals.[23]

            At the close of the hearing, the Judge told the parties he would be conducting a more thorough review of the case law before issuing any decisions on Boeing’s motion to dismiss.[24]

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[1] Rachel Riley, Judge Wary of Boeing’s Bid to Duck Birth Defect Suit, LAW360(Feb. 16, 2024, 7:50 PM), https://plus.lexis.com/newsstand/law360-us/article/1803971.

[2] Id.

[3] Id.

[4] Id.

[5] Rachel Riley, Secret Files Reveal Boeing Doctor Warned of Toxic Risks, Birth Defects, THE COLUMBIAN (Nov. 28, 2022, 6:01 AM), https://www.columbian.com/news/2022/nov/28/secret-files-reveal-boeing-doctor-warned-of-toxic-risks-birth-defects/.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Riley, supra note 5.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Riley, supra note 5.

[17] Id.  

[18] Id.

[19] Id.

[20] Jake Goldstein-Street, At Boeing’s Everett Plant, New Lawsuits Allege Further Birth Defects, HERALDNET (Sep. 29, 2023 5:08 PM), https://www.heraldnet.com/news/at-boeings-everett-plant-new-lawsuits-allege-further-birth-defects/.

[21] Riley, supra note 1.

[22] Id.

[23] Id.

[24] Id.