Effective July 1, 2026, Georgia enacted the “Putting Georgia’s Patients First Act” which significantly expands the state’s medical cannabis program. Whereas the approved use of medical marijuana had been extremely limited to certain severe and end-stage illnesses, the newly signed law no longer requires many of those illnesses to be “severe” or “end stage.” It also removes the previous cap on the THC potency, permits new consumption methods, and adds other “qualifying conditions” which are now eligible for approved use, such as inflammatory bowel disease, lupus, multiple sclerosis, and peripheral neuropathy when severe symptoms are present. See O.C.G.A. § 16-13-21(16).
Although marijuana remains illegal for recreational use in Georgia, industry experts predict there will be an imminent state-wide surge in the number of individuals seeking enrollment in the medical marijuana program, which is likely to result in a significant and substantial increase in the number of patients who are authorized by a doctor to use medial cannabis in the coming months and years. While there are approximately 36,600 currently enrolled, some experts anticipate that number is likely to triple over the next 12 months.
If the “experts” are correct in their prediction that it will become increasingly more common for individuals to legally possess and use medical marijuana in the future, there is a potential question regarding the impact it may have on the “intoxication defense” in workers’ compensation, especially where an employee is injured at work and subsequently tests positive for marijuana which he or she is “legally” authorized to use.
Under the Workers’ Compensation Act, the law essentially states an injured employee is not entitled to compensation for an injury 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). Furthermore, if a drug test is administered within eight hours of the accident and is positive for any amount of marijuana, there is also a rebuttable presumption that the work injury was caused by the ingestion of marijuana, and the burden of proof then shifts to the employee to prove the alleged impairment was not the actual cause of the injury.
To clarify, the Supreme Court has held the “intoxication defense” in workers’ compensation distinguishes between legal versus illegal drug use and that the presumption does not arise if the controlled substance was “lawfully prescribed by a physician … and taken in accordance with such prescription.” Kendrix v. Hollingsworth Concentra Products, Inc., 274 Ga. 210 (2001). Of course, the effect of the newly enacted law expanding the “legal” possession and use of marijuana at the approval of a physician for a qualifying condition has not yet been litigated in this context.
At this early stage, it appears the “intoxication defense” should still apply to employees who are injured at work due to the influence of medical marijuana. While an employee’s legal use of medical marijuana may be something to consider if raised in response to a denial based on a positive drug test, it is important to highlight that the new medical marijuana law still does not authorize doctors to “prescribe” marijuana to patients. The law only permits a doctor to provide qualified patients with a “certification” to enroll in the Medical Cannabis Patient Registry, thereby allowing them to obtain a medical marijuana card for the purpose of legally purchasing and possessing authorized products from pharmacies. Therefore, it is reasonable to argue the explicit language of O.C.G.A. § 34-9-17(b) regarding the exception to the “intoxication defense” for use of a controlled substance lawfully “prescribed” and taken in accordance with such “prescription” should not apply to an employee’s potential use of medical marijuana.
Another consideration is Georgia’s Drug Free Workplace Program which provides employers with broad authority to prohibit marijuana use at work, medicinal or otherwise, as businesses are generally not legally required to allow or accommodate marijuana use, possession, or impairment at the job site.
In sum, although the recent changes to the medical marijuana law are unlikely to have a significant impact on the “intoxication defense,” it is important for those administering workers’ compensation claims to be mindful of the anticipated trend of medical marijuana becoming more commonly used, which may potentially weaken the defense in the long-term. In the interim, an employer’s ability to maintain a zero-tolerance policy under Georgia’s Drug Free Workplace Program is likely the best avenue for protecting against any type of marijuana use in the workplace.