The Bluegrass State Has Gone Green – Medical Marijuana Legalized In Kentucky
Kentucky has become the 38th state in the U.S. to legalize cannabis for medical use. While the new law legitimizes the use of marijuana for medical purposes, it fails to afford lawful users employment protections, permitting employers to enforce “zero-tolerance” workplace policies. Further, it places specific obligations on workers who use medical cannabis to prove their innocence regarding impairment.
The law comes after an executive order issued by Kentucky Governor Andy Beshear in 2022 that allowed Kentucky residents with qualifying medical conditions to possess and use small amounts of legally purchased medical marijuana. Legalization has been an important issue for Beshear, a Democrat, who governs a state with a Republican legislature.
Under the new law, individuals eligible for treatment of “qualifying medical conditions” may possess a 30-day supply of cannabis at their residence and a 10-day supply on their person. While individuals may not smoke marijuana, vaping is permitted. Qualifying medical conditions include cancer, chronic, severe, intractable, or debilitating pain, epilepsy or other seizure disorders, multiple sclerosis, muscle spasms or spasticity, chronic nausea, post-traumatic stress disorder, or any other condition identified by the state’s regulator. Individuals under the age of 18 are eligible for treatment using medical cannabis with the assistance of a caregiver who is the patient’s parent or legal guardian.
Kentucky’s medical marijuana law affords a medical marijuana patient the same rights as a prescription drug user. However, it does not require that employers permit or otherwise accommodate its use. Employers are allowed to maintain zero-tolerance or drug-free workplace policies that prohibit the possession of marijuana while onsite or on duty. Job candidates may be disqualified from hire, and current workers’ employment may be adversely impacted based on a positive drug test for THC.
Employers can conduct random, for-cause, or post-accident drug screening as they do today. However, the burden shifts to the worker to prove sobriety if an employer concludes that a worker is impaired by marijuana while on the job after behavioral assessments and testing. Workers using marijuana at the workplace or while on duty, those found impaired by marijuana, or those who test positive for THC are not eligible for unemployment benefits under state law.
Employers who employ workers in “safety-sensitive” roles may restrict or prohibit the use of equipment by a worker who is a registered medical marijuana patient if the employer believes that the use of such equipment poses an “unreasonable safety risk.” Further, employers who engage vendors or suppliers for services may contractually prohibit the use of medical cannabis by employees.
The law will become effective by January 1, 2024, after implementing rules are established.
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