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Legislators in Kentucky legalized medical marijuana. The passing of this law is not expected to affect employers, but they should be aware of upcoming expungement opportunities.

An Executive Order

Kentucky’s Executive Action Relating To Medical Cannabis was published in 2022. It begins by discussing the medical benefits of cannabis and mentions that polls have shown 90% of adults in the state supported legalizing medical marijuana.

The Action also called for the establishment of the Team Kentucky Medical Cannabis Advisory Committee, which provided feedback about public opinion to the Governor. In a statement, Governor Andy Beshear wrote that citizens should not face criminal punishment for treating medical conditions. He also said that they should not have to obtain medical marijuana from another state to help with their treatment.

Expungement Opportunities

Since the Executive Action legalized the use of medical cannabis, the Governor will also grant pardons to people who have eligible charges for simple possession. This applies if:

• The medical cannabis was lawfully purchased in the United States but outside of Kentucky.
• The person who has a record can show proof of purchase which includes the location and date.
• The individual had a legal amount of cannabis, based on the laws in place where they made the purchase, that did not exceed eight ounces.
• The person or a caregiver can show a written certification from a healthcare provider who is licensed to work in Kentucky which specifies the individual has one of various medical conditions.

When a petitioner can meet those requirements, then they will receive a full pardon.

The Legalization Law Won’t Affect Employers

Organizations in Kentucky should be aware that the full extent of this Order was in effect as of January 1, 2024. It does not create any specific rules that employers must follow. They are not required to permit or accommodate the use of medical marijuana in the workplace. If an employee who uses medical marijuana on their own time has a safety sensitive position, then the employer may also prohibit or restrict them from operating equipment if doing so would create an “unreasonable safety risk.”

Further, employers are permitted to maintain zero-tolerance policies. They may conduct drug screening for legal purposes and, if an employee tests positive, then the individual is responsible for proving that they were sober during working hours. If a worker is found to be impaired by marijuana while on the job, they will not be eligible for unemployment benefits.

When Convictions Are Pardoned

Employers throughout the United States should know that when a criminal record is pardoned, expunged or otherwise sealed, they may not use it to help make decisions about that consumer. When this happens, the person may act as if the offense never occurred.

To help avoid reviewing records that are not reportable, businesses may wish to work with a Consumer Reporting Agency (CRA) that is accredited by the Professional Background Screening Association (PBSA). To earn accreditation, these CRA must show that they follow reasonable procedures to only provide current, accurate data in the background checks they produce.

Background Checks And Drug Tests

If your organization needs background checks and drug tests for employment purposes, please contact us. We are an accredited CRA with 20+ years of experience in our industry. Our team can help you customize screening packages based on your particular needs, applicable laws and industry requirements. We’re available to assist you Monday through Friday from 5am to 6pm PT.