Kentucky Governor Andy Beshear signed into law Senate Bill 47 on March 31, 2023 which legalizes medical cannabis in Kentucky. Under the law, eligible Kentucky residents will be able to apply for a registry identification card as a registered qualified patient after obtaining a written certification from the individuals’ medical practitioner. Out-of-state registry identification cards also will be accepted in some circumstances.
Qualifying medical conditions include any type or form of cancer; chronic, severe, intractable, or debilitating pain; epilepsy or other intractable seizure disorder; multiple sclerosis, muscle spasms, or spasticity; chronic nausea or cyclical vomiting syndrome that has proven resistant to other conventional medical treatments; and post-traumatic stress disorder. Additional medical conditions or diseases may also be approved by the Kentucky Center for Cannabis. The use of medical cannabis does not include cultivation of marijuana by a cardholder, the use or consumption of marijuana by smoking, or the use of industrial hemp.
The employer-friendly law does not permit a cause of action against an employer for discrimination or wrongful discharge. It does not require employers to permit or accommodate the use, consumption, possession, transfer, display, transportation, distribution, sale or growing of medical cannabis in the workplace.
Employers may implement policies promoting workplace health and safety by restricting the use of medicinal 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 such use poses an unreasonable safety risk. The law does not prohibit employers from including in any contract provisions that prohibit the use of medical cannabis by employees, nor does it prohibit employers from establishing and enforcing drug testing policies, drug-free workplaces, or zero-tolerance drug testing policies.
A registered cardholder may not be considered under the influence of cannabis solely because of the presence of tetrahydrocannabinol metabolites. However, if an employer determines that an employee who is a cardholder is impaired by the use of cannabis based on a behavioral assessment of impairment and a secondary step of testing for cannabis, the burden of proving non-impairment shifts to the employee to refute the findings of the employers. An employee who is discharged from employment for consuming medicinal cannabis, working while under the influence of medicinal cannabis, or testing positive for a controlled substance will be ineligible for unemployment if such actions are in violation of an employment contract or established personnel policy. In addition, the law does not require private health insurers, workers’ compensation carriers, of self-funded employers providing workers’ compensation benefits to reimburse a person for costs associated with the use of medicinal cannabis.
The law also restricts cardholders from consuming medical cannabis or being under the influence of medical cannabis while performing certain tasks, such as operating, navigating or being in control of an aircraft, vehicle, vessel or other device that is powered by machinery and that is or may be used to transport persons or property, among other things.
The provisions legalizing medical cannabis and the employment-related provisions of the law take effect on January 1, 2025. Kentucky employers should review the law and their policies to determine whether any policy revisions are necessary.