On March 31, 2023, Governor Andy Beshear signed Senate Bill (“SB”) 47 into law – making Kentucky the 38th state to legalize medical cannabis.
SB 47 legalizes the medical use of cannabis in Kentucky with certification from a qualified health care professional. Qualifying medical conditions are limited to cancer, chronic pain, epilepsy, multiple sclerosis, chronic nausea, and post-traumatic stress disorder. The law authorizes the Cabinet for Health and Family Services to issue licenses for testing, cultivation, manufacture, and the sale of medical cannabis.
As Kentucky moves forward with legalization, employers across the state will find themselves navigating an ever-evolving legal landscape. The passage of SB 47 marks a significant shift in the regulatory environment, and it is crucial for businesses – including businesses involved in the cannabis industry – to understand the implications of this new law on their operations and workforce management. Key employment considerations for Kentucky employers are outlined below:
- Legalization of medical cannabis in Kentucky does not require any employer, including employers involved in the cannabis industry, to permit the use of medical cannabis by employees while on duty.
- Employers are not required to accommodate medical cannabis use in the workplace and can enforce drug-free workplace and zero-tolerance policies. These types of policies remain fully enforceable. Drug testing remains entirely permissible, and employers can determine impairment through behavioral assessments and testing.
- Employees cannot utilize Kentucky’s medical cannabis law as the basis for a lawsuit alleging wrongful discharge or discrimination. In fact, employers are permitted to prohibit the use of medical cannabis by employees in contractual provisions and/or agreements.
- Employers are permitted to implement their own policies which promote workplace health and safety by restricting the use of medical cannabis by employees; or restricting or prohibiting the use of equipment, machinery, or power tools by an employee who is a registered qualified patient, if the employer believes that the use of such, machinery, or power tools by an employee who is a registered qualified patient poses an unreasonable safety risk.
- An employee who is discharged from employment for consuming medical cannabis in the workplace, working while under the influence, of medical cannabis, or testing positive for a controlled substance is not eligible to receive benefits under KRS Chapter 341, if such actions are in violation of an employment contract or established personnel policy.
It is noteworthy that Kentucky’s law permits employers more leeway to manage their business than cannabis-use laws in many other states. still, employers will need to take extra precautions to maintain a safe work environment, and thus, should consider developing clear policies that distinguish between permissible and impermissible use of medical cannabis, and train human resources teams, supervisory staff, and management on identifying impairment and understanding the legal landscape.
In addition to these best practices, entities involved in the cannabis industry should also remain mindful of certain challenges unique to the business, including careful attention to maintaining occupational safety and health programs. A helpful resource on building such programs can be found here.
