Drug testing - Kentucky

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:

• Behavioral assessments of impairment and
• A drug test using an established testing method.

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:

• Provide the employer with a signed consent which authorizes the employer to provide and receive documentation that confirms the employee’s participation in the program and completion of substance abuse treatment services.
• Comply with the employer’s drug policy.
• Comply with the program’s administrative regulations.

Employer requirements

Employers participating in the program need to:

• Develop and distribute a drug policy.
• Require an employee to participate in recommended drug education and licensed substance use disorder treatment services as a condition of employment.
• Comply with the program’s administrative regulations.

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:

• A written policy
• An employee assistance program (EAP)
• Employee and supervisor education and training
• Alcohol and drug testing at an approved lab
• Confidentiality
• Certification

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:

• Notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of alcohol or a controlled or illicit substance is prohibited in the workplace,
• Identifying methods that may be used by the employer to determine if violations by an employee exist, and
• Specifying the actions that will be taken against employees for violation.

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:

• The dangers of drug abuse in the workplace;
• The role of co-workers and supervisors in addressing alcohol or drug abuse;
• The employer's policy of maintaining a drug-free workplace;
• Available drug counseling, rehabilitation, and employee assistance programs; and
• The penalties for violations of the drug-free workplace policy.

An employer must also:

• Establish a program that includes alcohol and drug testing as outlined in the regulation;
• Provide an employee assistance program;
• Maintain a drug-free workplace throughout its workers' compensation insurance policy period;
• Maintain the drug-free workplace program in compliance with all federal and state laws and regulations that apply to that particular business.

Applications are available on the state’s Workers’ Compensation website. The site includes a sample policy, poster, and affidavit.