by Frank A. Wasser, Esq.
On May 9, 2017, Governor Deal signed into law an expansion of Georgia’s medical marijuana program, which allows certain patients the ability to possess up to 20 ounces of cannabis oil to treat specific illnesses. The new law added six conditions eligible for treatment. Significantly, the law only allows physicians to “authorize”, rather than “prescribe”, the use of cannabis oil for these conditions.
How does this new law impact compensability if an injured worker is found using cannabis oil? After all, O.C.G.A.§ 34-9-17(b) provides a defense against liability if an injury is due to an injured worker being under the influence of marijuana, “except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription” (emphasis added). There is also a rebuttable presumption that an employee’s work accident was caused by the consumption of marijuana, if that employee tests positive for marijuana use within 8 hours of a work accident.
Although this issue has yet to be addressed by a Georgia court, it seems unlikely the regulated use of medical marijuana will negate the rebuttable presumption described in O.C.G.A.§ 34-9-17(b). Although there is an exemption for medications that have been lawfully prescribed by a doctor, no doctor in Georgia has the ability to actually “prescribe” cannabis oil. Instead, the medical marijuana program serves only to “authorize” the possession of medical marijuana for patients with certain illnesses. This “authorization” is intended to protect qualified persons from criminal prosecution for possessing low THC oil for medicinal purposes. Consequently, the rebuttable presumption established by O.C.G.A.§ 34-9-17(b) will likely remain unaffected by Georgia’s medical marijuana statutes.
The list of illnesses covered under the law include: end stage cancers, Parkinson’s Disease, epilepsy, Crohn’s Disease AIDS, Alzheimer’s Disease, autism, epidermolysis bullosa, peripheral neuropathy and Tourette’s Syndrome. The expanded medical marijuana law will go into effect on July 1, 2017. We will provide ongoing updates on any legal interpretations of this new law.