Medical Cannabis in Kentucky: Executive Action Dated November 15, 2022 - Impact on Kentucky Employers

On November 15, 2022, Kentucky Governor Andy Beshear signed an Executive Order, which under certain circumstances, grants a “full, complete, and conditional pardon” to individuals who are accused of possession of marijuana under K.R.S. 218A.142. Governor Beshear’s Executive Order notes that a total of 37 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands allow for cannabis use for medical issues, by certain qualified individuals. The Executive Order becomes effective January 1, 2023. There will likely be litigation filed challenging the Executive Order prior to its effective date.

In general, the Executive Order provides that the pardon applies, “…if, and only if all of the conditions outlined are satisfied.” There are six conditions to satisfy including that (i) the cannabis be lawfully purchased in the United States, but outside of Kentucky; (ii) the individual has a written receipt with specific information regarding the purchase; (iii) the amount purchased must be the legal amount under the state law and not exceed eight ounces; (iv) the individual must have a written certification specifically for that individual from a licensed healthcare provider that the individual has been diagnosed with one of the specific conditions allowed; and (v) the certification is not a prescription. There are also definitions for the purposes of the Order.

The good news for Kentucky employers is, even if this Executive Order is upheld by the court, it should not impact an employer’s right to establish and enforce a drug testing policy which would be applicable to medical cannabis (herein after “medical marijuana”). The Executive Order applies only to criminal convictions under limited circumstance. Kentucky employers will still be allowed to:

• Conduct pre- and post-hiring drug tests, as a condition of initial or continued employment, or the basis for adverse employment actions;
• Discipline employees who use medical marijuana in the workplace, or who work while under the influence of medical marijuana; and
• Enforce any and all federal regulations such as the U. S. Department of Transportation drug and alcohol testing regulations.

The Executive Order does not:

• Create a private cause of action by an employee against an employer; or
• Affect, alter or otherwise impact workers’ compensation premium discounts available to employers who establish a drug-free workplace program in accordance with K.R.S. 304.13-167(6).

It is anticipated that one challenge an employer may face is an employee’s request for use of medical marijuana, away from work, as an accommodation for a disability, away from work, under the Kentucky Civil Rights Act. This is particularly true if the employee is not in a safety sensitive job. Many things could come into play in that situation including whether the employer receives federal funds, or has contractual requirements with clients or vendors.

The federal government has not legalized medical marijuana as of this date, although on October 6, 2022, President Biden issued a presidential proclamation that pardons federal convictions for simple marijuana possession offenses. The proclamation applies only to federal convictions. In addition, The Medical Marijuana and Cannabidiol Research Expansion Act to grow studies on marijuana is headed to President Biden's desk as the first standalone cannabis reform bill to pass both the U.S. House of Representatives and the Senate. The bill aims to eliminate red tape that's slowing cannabis research for new treatments.