New medical marijuana law offers 4 tips for employers
A new medical marijuana law in Kentucky walks a fine line between employee rights and workplace safety, something many employers are looking to do as more states legalize cannabis.
The law, signed by Gov. Andy Beshear on March 31, takes a cautious view of drug testing, but gives employers other tools for supporting safety and dealing with impairment.
Although the law applies only in Kentucky and won’t take effect until January 1, 2025, it offers lessons every workplace should consider today:
- There’s no need to allow marijuana at work. Although marijuana is legal for medical use in more than 35 states and for recreational use in 21, no law requires employers to allow workers to have it in the workplace or on company property. Kentucky’s new law allows employers to prohibit the use, consumption, possession, transfer, display, transportation, sale, or growing of medical marijuana in the workplace. That’s something every workplace should consider having in their workplace drug and alcohol policy.
- Be cautious with drug tests for marijuana. Drug testing for marijuana is controversial because a positive test shows that marijuana has been used at some point in the past 30 days or so, but doesn’t pinpoint when it was used or prove that a person is impaired by the drug. For this reason some state medical and recreational marijuana laws prohibit employers from taking action based only on a positive drug test for marijuana unless there is a federal law that says otherwise. Kentucky’s new law takes this approach and does not allow a test alone to prove impairment. Employers should be cautious when using a positive test for marijuana as a reason for a negative employment action. Be aware of what state laws allow or prohibit with regard to marijuana testing, and pause before using only the positive test as a reason to fire or discipline an employee or not hire an applicant.
- Use a drug test and reasonable suspicion to prove impairment. Kentucky’s law allows employers to exercise the “ability to determine impairment of an employee who is a cardholder.” This includes using a behavioral assessment of an employee’s impairment, followed by a drug test. Documenting the signs of impairment before doing a drug test is always a best practice, as it creates a written record that supports any disciplinary action that is taken. As a second step, a drug test can be given, when allowed by state law.
- Treat medical marijuana as a prescription drug. In some states, employers need to consider whether an accommodation can be made when an employee with a medical marijuana card tests positive for the drug. Kentucky’s law spells out how to do this: Treat medical cannabis users the same way any individual with a prescription medication is treated. This means entering into the interactive process before taking action. Employers should talk to the employee about options and ask the employee to receive input from a medical care provider about how use of the drug affects the employee’s ability to work safely.
Other protections offered under Kentucky’s law
Kentucky’s law also offers other protections. Employers are allowed to:
- Restrict the use of medical cannabis.
- Restrict or prohibit the use of machinery, equipment, or power tools by a registered qualifying medical marijuana patient if the employer believes this poses an unreasonable safety risk.
- Have contract provisions that prohibit the use of medical marijuana by employees.
In addition, the law does not allow an employee to sue an employer for wrongful discharge or discrimination related to medical marijuana use.
It also allows an employer to have a drug testing policy, zero tolerance drug policy, or drug-free workplace policy. However, because it also prohibits employers from using a positive test for marijuana alone to prove impairment, employers should be careful with how they use information about a positive marijuana test for individuals who are medical marijuana patients.
These provisions only apply in Kentucky, but other state marijuana laws have similar clauses. Some laws are more employee-friendly, however, so it’s critical to understand what your state law allows or prohibits before taking action against an employee, or refusing to hire an applicant, for a reason that relates to marijuana or a positive test for cannabis.
Key to remember: As more states legalize marijuana, employers need to take additional steps to balance workplace safety and employee rights.
