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Kentucky Cannabis Testing Impacts: Governor Signs Legislation Legalizing Medical Marijuana April 2023

Kentucky Gov. Andy Beshear has signed a bill to legalize medical marijuana, making Kentucky the 38th in the nation to approve the medicinal use of cannabis for patients with serious health conditions. Accordingly, medical cannabis is now legal in Kentucky and will be available beginning January 1, 2025.

Senate Bill 47 allows patients with certain qualifying medical conditions including cancer, chronic pain, epilepsy and post-traumatic stress disorder to obtain a doctor’s recommendation to use cannabis medicinally. The bill does not allow patients to smoke marijuana, although it does allow for the sale of unprocessed cannabis flower for vaporization. Other cannabis formulations including capsules, tinctures and topical products are also authorized by the bill. Patients will be permitted to possess a 10-day supply of cannabis on their person and a 30-day supply at home.

The law is employer-friendly and 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 also 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, employers can exercise their ability to determine the impairment of a medical cannabis cardholding employee. “Good faith” impairment determinations include a behavioral assessment of impairment followed by the secondary step of testing for cannabis via an “established method.” If a cardholding employee is determined to be impaired based on a behavioral assessment and drug test, the burden of providing non-impairment then shifts to the employee.

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