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Kentucky - Considerations for Marijuana in the Workplace

  • Last Update on April 24, 2023

Medical
Marijuana Law:

Recreational
Marijuana Law:

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Employer Concerns – Significant to Review

  • Senate Bill 47 legalized medical marijuana in Kentucky, signed by the Governor on 03/31/2023.  This goes into effect January 1, 2025 but current Governor’s executive order remains in effect, allowing those suffering from some medical conditions the ability to obtain medical cannabis out of state until that time.
  • Under Kentucky’s SB 124, CBD with no psychoactive component of marijuana and hemp plants became allowed for certain conditions with a written order from a physician who is practicing at a hospital or associated clinic with a Kentucky public university having a college or school of medicine.
  • Kentucky has a voluntary law that, although not required, if an employer elects to comply, they will qualify for a workers’ compensation premium discount. It does require testing for marijuana.
  • There is also mandatory law for the mining industry with drug-free workplace requirements, including testing for marijuana.

Testing

  • See Significant above.
  • It is unclear whether employers are permitted to use oral fluids testing when participating in Kentucky’s premium discount program for workers’ compensation. It is necessary for an employer to check with the state of Kentucky to determine whether KY 803 will now accept oral fluid specimen as valid.
    • Kentucky’s voluntary law for workers’ compensation premium reduction and employer protections (803 KAR 25:280) calls for testing, “…pursuant to standards, procedures, and protocols established by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA), and then later (Section 3 (3)(a)) refers to urine as the appropriate specimen. In (803 KAR (4)) states that, ”The office may issue a certification for a program that provides for alcohol and drug testing of other fluids or products of the human body capable of revealing the presence of drugs or alcohol if the testing is as accurate as, and equivalent to, breath alcohol and urine drug testing and complies with this section of this administrative regulation.”
    • Per the Oral Fluid Mandatory Guidelines effective January 1, 2020, SAMHSA has expanded to include standards, procedures and protocols for oral specimen.

Hiring/Termination

Employers can establish and enforce drug testing policies, drug-free workplaces, and zero-tolerance drug policies.

Discipline

Employers can establish and enforce drug testing policies, drug-free workplaces, and zero-tolerance drug policies.

Use/Possession

  • Kentuckians may legally purchase hemp-derived CBD products over the counter as long as they contain no greater than 0.3% THC or other cannabinoids. The CBD can be oils, tinctures, topicals, and vaporizers derived from hemp. Be aware that come CBD products may contain greater then 0.3% THC or other cannabinoids; take these products at  your own risk.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • An employee is ineligible for unemployment benefits if he or she was discharged for reporting to work under the influence or consuming drugs at work.
  • An employee’s injury or death that was proximately caused primarily by voluntary intoxication is ineligible for workers’ compensation.
  • Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)
  • Senate Bill 47
  • Kentucky SB 124 – CBD related
  • 803 KAR 25:280 – Drug testing related
  • Kentucky Rev. Stat. 341.370 – Unemployment related
  • Kentucky Rev. Stat. 342.610 – Workers’ compensation related
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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