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Marijuana testing
An employer cannot use a drug test alone to prove impairment due to medical cannabis use. However, an employer may make a good faith determination of impairment of a medical marijuana patient through:
If an employer determines that an employee is impaired due to use of medical cannabis, through behavioral assessment and testing, the burden of proving non-impairment to refute the findings is on the employee.
Kentucky Transformational Employment Program
The voluntary Kentucky Transformational Employment program is an employer-facilitated substance use disorder program.
The program supports employers who help those in recovery. Employers who comply with the voluntary program receive some liability protection against lawsuits related to negligent hiring, negligent retention, negligent supervision, or a negligent act by an employee as a result of the employee’s substance use disorder.
Employee requirements
Employees who wish to participate in the treatment program need to:
Employer requirements
Employers participating in the program need to:
Enrollment in the program is facilitated by the Kentucky Chamber foundation and can be completed online.
Privacy
Employers must keep all records and information relating to drug test results, treatment assessments, and treatment reports confidential.
The information must be kept separate from the employee’s personnel file.
The information can be shared internally with those who need to know and externally with the employee’s written authorization. It can also be shared under a court order.
Discipline
Employers have the right to discipline or terminate an employee who does not comply with the treatment services or the employer’s drug policy.
Payment
An employer may pay for all or part of the employee’s substance use disorder education and treatment services. An employer may also accept a voluntary wage assignment to pay for part of the treatment. The wage assignment must not reduce the employee’s net pay below the federal minimum wage.
Unemployment compensation
Kentucky law provides for denial of unemployment compensation benefits to an employee discharged for reporting to work under the influence of drugs or alcohol or for consuming drugs or alcohol on employer’s premises during working hours.
Workers’ compensation
Under Kentucky's Drug-Free Workplace Program, employers may be eligible to receive a discount on their workers’ compensation insurance premium.
The Kentucky Drug-Free Workplace program requires a written policy, education and training, an employee assistance program, alcohol and drug testing, records confidentiality, and certification. The program addresses pre-employment, random, reasonable suspicion, follow-up, and post-accident drug testing. It requires that employers have:
Employers who wish to have drug-free workplace certification must submit an application to the department. It must include an affidavit from a business’s owner or chief executive officer establishing that it provides a drug-free workplace. The employer must create a statement:
The statement must be posted in a prominent place and provided to each employee.
An employer must establish an alcohol and substance abuse education and awareness training program which complies with the minimum requirements of the regulation. Employees and supervisors must receive one hour of initial training and 30 minutes of refresher training in each subsequent year. Supervisors must receive an additional 30 minutes of training each year. It must inform employees and supervisory personnel about:
An employer must also:
Applications are available on the state’s Workers’ Compensation website. The site includes a sample policy, poster, and affidavit.
Contacts
Kentucky Labor Cabinet, Drug Free Workplace
Regulations
Unemployment compensation
Kentucky Revised Statutes Title XXVII, Chapter 341, §341.370(6)
Workers’ compensation
Kentucky Revised Statutes Title XXV, Chapter 304, §304.13-167
Kentucky Administrative Regulations, 803 KAR 25:280
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document