Can an employer drug test, fire you for medical marijuana in Kentucky? What the law says
Kentuckians can purchase and possess medical cannabis under conditions laid out in a 2022 executive order from Gov. Andy Beshear, and beginning in 2025, they’ll be able to obtain medical marijuana cards thanks to a new state law.
So, if you are using medical marijuana in Kentucky in accordance with either the new law or existing executive order, can your employer drug test and fire you if test positive? Even if it’s off the clock? The short answer is yes.
While other states, like California, have recently extended employment protections to their residents, Kentucky has not.
To understand why, let’s take a look at the extent (or lack) of employee protections in the executive order and state law.
How does the governor’s executive order apply to this issue?
We took up this question early last year, when several of our readers wrote to us with questions about whether they could be terminated from their job, even if they followed the governor’s executive order to the letter.
At the time, we reached out to attorney Michael Bouldin of Covington, who deals with medical marijuana and cannabis law in his legal practice. Much of what he had to say then still applies, even in light of the separate state law on medical cannabis use.
Beshear’s administration has said his executive order will stand until the new law goes into effect in January 2025. What the governor essentially did with his executive order is declare he will grant a pardon to anyone convicted of marijuana possession, provided they followed all the requirements laid out in the executive order.
As Bouldin pointed out, Kentucky is an at-will employment state, and this remains true. Essentially, your employer can terminate you at any time for any reason or no reason at all, provided it’s not illegal and there is no employment contract that says otherwise. You can’t be fired for your age, race, religion or similarly protected class, but that doesn’t include medical cannabis use.
“Therefore, if you have been charged, you can be fired,” Bouldin previously told the Herald-Leader. “What (the executive order) will do is allow that individual that meets the requirements to have the (court) case not only dismissed, but a pardon will have it expunged off your record.”
To sum it up, the executive order offers a measure of legal protection against criminal prosecution. Your employer can still enforce a zero-tolerance policy, even if you’re not using medical cannabis on the clock.
Does KY’s new medical cannabis law have protections for employees?
Under California’s new law, employers are required to test for marijuana use among employees with tests that determine current impairment, not just previous use.
Kentucky’s new medical cannabis law does not include a similar requirement. As laid out in the law itself, and summarized by one labor law firm, employers can continue to enforce their drug-free workplace and zero-tolerance policies.
Some key provisions of the law include the following:
The law does not “require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, distribution, sale, or growing of medicinal cannabis in the workplace.” The law also states employers won’t be prohibited from “establishing and enforcing a drug testing policy, drug-free workplace, or zero-tolerance drug policy.”
Employers are still free to include any contract provisions that prohibit the use of medicinal cannabis by employees. They may also categorically restrict or prohibit “the use of equipment, machinery, or power tools by an employee who is a registered qualified patient, if the employer believes that the use of such equipment, machinery, or power tools by an employee who is a registered qualified patient poses an unreasonable safety risk.”
The law does not specify what type of drug testing employers must use, only that they must be “good faith determinations of impairment.” That includes behavioral assessments of impairment,” followed by testing with “an established method.” If the employee is found to be “impaired,” then “the burden of proving non-impairment shall shift to the employee to refute the findings of the employer,” according to the law.
So, while the law will legalize medical cannabis in Kentucky, its scope is limited. The list of qualifying medical conditions for cardholders includes cancer, epilepsy, chronic and severe pain, multiple sclerosis, chronic nausea or post-traumatic stress disorder.
What’s more, employers are still free to restrict the use of medical cannabis by their employees, in the workplace and outside of it.
Do you have a question about marijuana in Kentucky for our service journalism team? Let us know via the Know Your Kentucky form below or email us at ask@herald-leader.com.