Kentucky is the most recent state to legalize medical marijuana, with residents being able to apply for a medical marijuana card with a written medical certification starting in 2025.
Governor Andy Beshear signed Senate Bill SB 47 into law on March 31, making it legal for Kentucky residents to use marijuana to treat qualified medical conditions.
Those conditions include:
- any type or form of cancer regardless of stage
- chronic, severe, intractable or debilitating pain
- epilepsy or any other intractable seizure disorder
- multiple sclerosis, muscle spasms or spasticity
- chronic nausea or cyclical vomiting syndrome that has proven resistant to other conventional medical treatments
- post-traumatic stress disorder, and
- any other medical condition the Kentucky Center for Cannabis determines that scientific data and evidence exists to show that an individual diagnosed with that condition is likely to receive medical, therapeutic or palliative benefits from the use of medicinal cannabis.
Drug-free workplaces, drug testing allowed
While medical marijuana may now be legal in the state, employers will still have “substantial legal safeguards allowing them to restrict the use of medical marijuana in the workplace,” according to law firm Frost Brown Todd LLP.
Employers will be able to prohibit registered medical marijuana cardholders from using equipment, machinery or power tools if the employer believes it will present an unreasonable safety risk. The law restricts cardholders from using or being under the influence while performing certain tasks such as operating “a common carrier aircraft, vessel or other machine-powered device.”
Drug-free workplaces are still allowed under the law and employers can prohibit medical marijuana use through “reasonable detection and enforcement.” Marijuana drug testing will be permitted and employers will be allowed to “act in accordance with test results.”
Further, employers can test employees in “good faith” to determine if the cardholder was working while being impaired. This requires a behavioral assessment for impairment and drug testing “through established methods.” If the results from the assessment and test prove impairment, then the “burden of proving non-impairment will shift to the employee to refute.”
Medical marijuana also remains illegal under federal law, so Kentucky employers who are subject to the federal Drug-Free Workplace Act “must continue to prohibit employee medical marijuana use accordingly to avoid consequences thereunder.”
The new law will shield employers against employee lawsuits for wrongful discharge or discrimination for medical marijuana use. Employees who are discharged for consuming medical marijuana or working while impaired by the drug will be ineligible for unemployment under certain conditions.