Kentucky Governor Andy Beshear signed SB 47 into effect, making Kentucky the 38th state to permit medical cannabis use for certain serious health conditions, and will be available beginning January 1, 2025. Medical cannabis patients are not to be considered under the influence based solely on the presence of cannabis metabolites. SB 47 provides guidance for employers, including what constitutes a “good faith” determination of impairment.
The Medical Cannabis Lowdown
SB 47 permits the use of medical cannabis for individuals with any of the following conditions:
- Any type of cancer.
- Chronic or severe pain. o Epilepsy/an intractable seizure disorder.
- Multiple sclerosis, muscle spasms, or spasticity.
- Chronic nausea/cyclical vomiting syndrome that is resistant to conventional medical treatments.
- Any other medical condition or disease that the Kentucky Center for Cannabis determines would benefit from the use of medicinal cannabis.
Smoking medical cannabis is prohibited, although vaping, and ingestion via capsules, tinctures, and topical products are permitted. The program is set to launch by January 2025.
What About Medical Cannabis in the Workplace?
Employers are not required to:
- Permit or accommodate the use, consumption, possession, transfer, transportation, distribution, sale, or growth of medical cannabis in the workplace.
- Implement policies restricting the use of medical cannabis by employees.
- Implement policies restricting/prohibiting the use of equipment, machinery, or power tools by a registered medical cannabis patient if the employer believes that the use of such equipment would pose an unreasonable safety risk.
- Include a provision in a contract that prohibits the use of medical cannabis by employees.
- Prohibit or regulate the use, consumption, transfer, display, transportation, sale, or growth of medical cannabis on their property.
- Establish and enforce a drug testing policy, drug-free workplace policy, and/or zero-tolerance drug policy.
A registered medical cannabis patient is not considered to be under the influence of medical cannabis solely because of the presence of tetrahydrocannabinol metabolites. This includes but is not limited to, the cannabinoid carboxy THC, also known as THC-COOH.
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.
Employees that are discharged because of their consumption of medical cannabis in the workplace, for working while under the influence of medical cannabis, or who tested positive for a controlled substance are not eligible to receive benefits under Kentucky’s unemployment compensation denial law (KRS Chapter 341) as long as such actions are in violation of an employment contract or established personnel policy.
When Do I Need to Comply?
The majority of SB 47 is set to take effect on January 1, 2025 (including the above-mentioned sections). Employers should review their policies and comply prior to this date. For more information, the full text of the bill can be found at the below link:
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