This article from JDSUPRA highlights some valuable lessons from the Medical Cannabis Use Law due to go into effect in Ketucky on 1/1/2025.
We provide a summary of the blog post below with some of our own comments. We encourage you to read the article in depth as it provides some valuable advice on actions to take when someone presents a Medical Marijuana Card.
Employees who become registered cardholders may mistakenly expect to use medical cannabis without any job repercussions, but the new law empowers employers to set rules restricting even lawful use by employees. [R&A comment – We have a previous blog post here about an employer successfully removing an employee who “flashed” a medical marijuana card.] So, now is the time to review the new law and effectively communicate your policies to employees. The authors provide some quick background + three key takeaways and a five-step action plan. [R&A comment -Please consult competent employment counsel to review your state’s laws in this area.]
Quick Background
The Kentucky law takes effect January 1 and establishes a Medical Cannabis Program that:
- allows individuals with a qualifying medical condition (such as cancer, chronic pain, or epilepsy) to possess, transport, and use medical cannabis after obtaining a valid registry identification card from the Cabinet for Health and Family Services (CHFS); and
- protects and regulates medical cannabis practitioners and licensed medical cannabis businesses in the Commonwealth, including cultivators, dispensaries, producers, and safety compliance facilities.
As an employer, you should be aware of the types of conduct that will remain illegal – especially if your work environment or industry is subject to greater restrictions. Operating Equipment: Employers may prohibit employees from using equipment, machinery, or power tools if you believe the employee’s medical cannabis use poses an unreasonable safety risk. In fact, the operation of some equipment, such as vehicles, aircraft, or other vessels, while under the influence would not only be a potential violation of employment policies, but the law as well. [R&A comment – we have a blog post here that discusses the importance of identifying safety-sensitive job positions in your workplace.]
Restrictions on Certain Properties: Employees that work at any preschool, primary, or secondary school; any correctional facility; or on federal government property will also be legally restricted from the use or possession of medical cannabis while working in these environments.
Professional Limitations: Certain employees licensed under the Kentucky Board of Nursing, the Kentucky Board of Podiatry, or the Kentucky Board of Medical Licensure, may be subject to disciplinary action if there is probable cause to believe that they have become impaired by or abused medical cannabis. They may also be subject to discipline by their licensing board if their use interferes with their professional, social, or economic functions in the community or causes a loss of self-control. The law also does not protect any employee who undertakes a task when under the influence if doing so would constitute negligence or professional malpractice. [Please
- Employers Can Implement Policies Limiting the Use in the Workplace.
Employers are not required to permit or accommodate the use, consumption, possession, transfer, display, transportation, distribution, sale, or growing of medical cannabis in the workplace. Employers may include provisions in their employment contracts prohibiting use by employees. Additionally, they may create or rely upon existing personnel policies prohibiting the use of cannabis – including medical use – by employees.
- Cardholders Are Not Granted a Protected Legal Status.
Medical cannabis users don’t have protected legal status under Kentucky or federal law.
Discharged employees will not be eligible for unemployment insurance benefits if they are discharged for consuming medical cannabis in the workplace, working while under the influence, or testing positive for a controlled substance, if those actions violated their employment contract or your established personnel policies.
At the federal level, all cannabis use remains illegal, and the Americans with Disabilities Act does not require you to permit medical cannabis to be used in your workplace as a reasonable accommodation for an employee’s qualifying disability.
5-Step Action Plan for Kentucky Employers [R&A comment – and really any employer.]
Determine how you will approach employees who are cardholders and medical cannabis use in your workplace. For example, you will need to decide whether to take a hard line against medical cannabis use or a more nuanced approach (such as permitting lawful use off-the-clock but prohibiting use or impairment while on the job).
Update your drug use and testing policies (as needed) to reflect your stance on medical cannabis in the workplace and how you will enforce any new rules or restrictions you choose to implement.
Notify your employees of any policy changes.
Work with counsel to draft employment contract provisions (if applicable) prohibiting employees from using medical cannabis.
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at Randisian
