In Georgia, private employers do not need a mandatory drug testing policy.  However, employers may choose to implement a drug-free workplace program (DFWP) certified by the Georgia State Board of Workers’ Compensation.  Employers who implement a DFWP receive a 7.5% reduction of their workers’ compensation premiums.  To implement a DFWP, employers may submit an application online.  This application must be renewed annually for a $35 fee with the Georgia State Board of Workers’ Compensation.

While employers are not required by statute to maintain a DFWP, employers who choose to implement a DFWP must meet standards provided for by statute.  These standards include a written policy, substance abuse testing, resources for employee assistance providers, employee education, and supervisor training.  The standards set by statute must be met for a DFWP to be effective and thus qualify employers for workers’ compensation premium discounts.  Additionally, the DFWP must meet confidentiality standards and offer optimum level core services such as the designation of an individual to administer the employee assistance program. (See O.C.G.A. § 34-9-413.)  Under DFWP rules, random substance abuse testing is permitted but not required of employers.  Reasonable suspicion testing is required under DFWP standards when employers objectively believe that an employee used drugs or alcohol in violation of the DFWP policy. 

If employers choose to implement a DFWP policy, the policy must be provided to employees and applicants.  Employers who choose to test applicants must provide notice of this policy in the job listing.  Moreover, drug and alcohol testing may not begin until sixty (60) days following receipt of the policy by all employees.  The policy must provide general information on types of testing that may be required, consequences of positive test results and refusal to take a test, a confidentiality statement, information about the availability of the employer’s employee assistance program, information about the employees’ rights to contest a positive confirmed test result within five (5) days, and a statement about the DFWP statute.  This policy should also be posted at the worksite.

DFWP rules explicitly permit employers to test for the presence of alcohol and a variety of drugs, including amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine, methaqualone, methadone, opiates, phencyclidine, and propoxyphene.  These rules do not prevent the testing of any substance not listed by statute.

Private employers in Georgia are not restricted from taking adverse action against applicants or employees who test positive for drugs or alcohol.  Employers should be aware that the use of cannabis for medicinal purposes was legalized in Georgia in 2015 under Haleigh’s Hope Act so long as the user has a qualifying medical condition.  Haleigh’s Hope Act does not protect users of medical cannabis from adverse employment action, nor does federal law.  In fact, under federal law, employers are not required to allow employees to treat or use medical cannabis on-site.  However, an individual protected under the ADA may still try to creatively bring a claim based on disability discrimination if he/she used medical cannabis to treat a disability and consequently suffered adverse employment action.  The Equal Employment Opportunity Commission (EEOC) has stated that it will scrutinize employer policies and protocols to ensure employees are not discriminated against based upon a disability for which cannabis is prescribed.  Note that employees who engage in recreational marijuana use are not protected under federal law nor Georgia state law.

An effective drug and alcohol policy improves workplace morale, promotes safety and efficiency, sets uniform employee expectations and standards, provides for optimal employee performance, and acts as an affirmative defense should a drug or alcohol issue arise in the workplace.  Thus, the importance of an effective drug and alcohol policy cannot be minimized.

In summary, private employers in Georgia are under no mandate to engage in drug and alcohol testing of employees.  Employers who wish to receive a discount on their workers’ compensation premiums may choose to implement a DFWP.  Minimum standards for these policies are provided for under Georgia’s Workers’ Compensation Law, and employers who fail to comply with the given standards will not receive discounted premiums.

If you are in need of assistance in updating your Employee Handbook, please contact one of the attorneys in our Employment Law Group at EmploymentLaw@c-wlaw.com or 1-888-488-2638.