Kentucky Drug Testing Laws 2024

Kentucky Drug Testing Laws 2024

Private employers in Kentucky can adopt drug-free workplace programs as described in the state’s Administrative Regulation 803 KAR 250:280. Adopting a drug-free workplace program in the state dictates where and when an employer can drug test its employees. An employer's drug-free workplace policy must indicate the reason for drug testing and stipulate steps to ensure employees' confidentiality. Employers who adopt and implement drug-free workplace programs in Kentucky qualify for certain benefits, including discounts on workers' compensation insurance premiums.

Adopted in June 2008, 803 KAR 25:280 established the requirements for employers to implement drug-free workplace programs by applying and getting certified by the state’s Department of Workers’ Claims. Joining the program is voluntary.

While the Kentucky Medical Marijuana Program will not kick off officially until January 2025, the state governor, Andy Beshear, issued an Executive Order in November 2022. The Executive Order, which took effect in January 2023, permits Kentuckians diagnosed with certain debilitating medical conditions to use medical marijuana. However, the Order does not ban employer policies on workplace drug use and employee drug testing. In line with the Kentucky Civil Rights Act (KCRA) and the Americans with Disabilities Act (ADA), employers in the state may continue to test employees for medical cannabis. Also, no employer is prohibited from taking action against any employee who tests positive for medical cannabis.

In Kentucky, employers are not required to accommodate employees' on-site use of medical cannabis. Currently, several states are split on whether employers should accommodate employees' use of medical cannabis off-duty. As of 2024, it is not clear whether Kentucky employers permit employees' use of medical cannabis outside of work, but state courts are expected to rule on it at the appropriate time. To avoid running afoul of relevant disability laws, employers can engage with their employees to consider whether they can make reasonable accommodations for off-duty medical marijuana use.

What Kinds of Drug Tests Can Employers Conduct in Kentucky?

Under the state's drug-free workplace law, any Kentucky employer who adopts a drug-free workplace program can test its employees for the following drugs:

• Cocaine
• Propoxyphene
• THC/Cannabinoids (Cannabis)
• Opiates
• Amphetamines
• Methaqualone
• Synthetic narcotics
• Methadone
• Benzodiazepines
• Phencyclidine (PCP)
• Barbiturates

The Kentucky drug testing law only permits the use of urine for drug testing. However, in certain instances, the state's Department of Workers' Claims can issue an employer a certification allowing them to collect and use additional specimens like blood, saliva, and hair for drug testing. An Employer with a drug-free workplace program in Kentucky can request their employees to submit to drug tests for cannabis in the following circumstances:

• Upon reasonable suspicion of employees's use of prohibited substances, especially with signs of marijuana impairment (reasonable suspicion testing)
• After a conditional offer of employment (pre-employment testing)
• After an accident on the employer's premises or in the line of duty, which requires that an employee receives off-site medical attention (post-accident drug testing)
• After selecting employees via an unannounced random but statistically valid method (random testing)
• After an employee successfully completes a drug rehabilitation program or an employee assistance program (follow-up drug testing)

Can Employers Do Random Drug Testing in Kentucky?

Yes, a Kentucky employer can conduct random drug testing on its employees. However, per the state's drug testing laws, the employee selection method must be unbiased and statistically valid. Additionally, workplace random drug testing in Kentucky must be unannounced. Depending on the employer's policy, employers may have more guidelines for conducting random workplace drug testing. For instance, the Kentucky State Police conducts random drug testing on its employees by using a computer to randomly select employees' identification numbers and drug test those selected within 5 working days. Once selected, the employees are asked to fill out voluntary consent forms.

What Happens if You Fail a Drug Test in Kentucky for a Job?

Under Kentucky law, there are no protections for employees who fail workplace drug tests. Employers are free to take any employment action they like, including dismissal from work, against any employee who tests positive for marijuana or other drugs. For instance, 908 KAR 3:190 establishes the procedure for drug testing employees and contractors of state agencies for persons with developmental or intellectual disabilities. Under these administrative regulations, any test-designated employee who fails a drug test can be immediately removed from work duties and subjected to disciplinary actions, including terminating their employment.

Can I Be Fired for Refusing a Drug Test in Kentucky?

Kentucky employers that adopt drug-free workplace programs can fire employees who refuse to submit to drug tests. Failing to cooperate with the drug testing process is treated as a refusal to be tested in the state, which can result in disciplinary action, including possible employment termination. An employee who has received and acknowledged a copy of an employer's drug-free workplace policy but fails to submit to drug testing will not be able to contest their employment termination. However, there are exceptions under certain conditions. For instance, they may file legal claims based on the circumstances surrounding how the test was conducted, including claims of defamation, privacy invasion, and discrimination.

Can You Get Fired for Failing a Drug Test with a Medical Card in Kentucky?

Yes. The Kentucky Medical Marijuana Program has yet to launch, and no Kunruckian has a medical cannabis card as of 2024. However, the Executive Order signed by the state's governor in November 2022 to allow medical cannabis use does not prohibit employers from testing their employees for drugs, including marijuana. Medical cannabis patients who are employees in companies with drug-free workplace programs can still be disciplined or fired for failing drug tests for cannabis in Kentucky.

Can Employers Conduct Drug Tests on Applicants in Kentucky?

Under Kentucky workplace drug test regulations, no employer can drug test a job applicant. Only prospective employees with conditional offers of employment and current employees can be asked to submit to workplace drug tests in line with state law. As a result, no Kentucky employer may refuse to hire a job candidate for refusing a drug test, provided they meet all other conditions.

Is Pre-Employment Drug Testing Allowed in Kentucky?

Yes, Kentucky permits pre-employment drug testing. All job candidates who have received conditional offers of employment from employers participating in the state's drug-free workplace program are required to submit to pre-employment drug tests. Under the Kentucky pre-employment drug testing law, an employer may deny a person employment for refusing to submit to a pre-employment drug test. Similarly, if the employee fails the test, the employer is not prohibited by any law to refuse to hire them. There are currently no protections for anyone who fails workplace drug tests in Kentucky.

Does Kentucky Allow Public Agencies to Submit Employees to Workplace Drug Tests?

Yes. In Kentucky, public agencies can subject local or state employees to workplace drug tests, but they must have compelling justifications. Otherwise, employers risk violating employees' Fourth Amendment rights. Generally, public employees can be drug tested based on pre-employment, post-accident, and reasonable suspicion. However, unlike in the private sector, public agencies in Kentucky may only conduct random drug tests on employees whose positions are considered safety-sensitive. They include emergency dispatchers, gas pipeline workers, law enforcement officers, and firefighters. Generally, workplace drug testing policies for public sector employees place certain limitations on who can be drug tested and when and how the test can be conducted.

Can Employers Choose to Create Drug-Free Workplace Policies?

Having a drug-free workplace policy is optional for employers in Kentucky. However, employers can establish workplace drug policies once they adopt a drug-free workplace program under the Commonwealth's law. Such policies must outline when, where, how, and why drug tests may occur. They must also stipulate what employers will do to ensure employee confidentiality. An effective workplace drug testing policy must be legally compliant and provide employee education and awareness.

Maintaining a drug-free workplace in Kentucky shows an employer’s willingness to provide a safe environment for its employees. In return, the employer may qualify for economic benefits, including a 5% discount on their workers’ compensation insurance premium. When an employer creates a drug-free workplace policy in the state, they must give their employees between 60 and 90 days in advance before conducting any test. They should ensure that all employees read a copy of the workplace drug testing policy and sign a receipt of acknowledgment to indicate that they understand and will comply with the policy.

Employees Exempted From Kentucky Workplace Drug Testing Laws

In Kentucky, individuals employed by companies or organizations with no drug-free workplace policy cannot be mandated to undergo workplace drug tests. Except in certain circumstances, especially for employers with some safety-sensitive positions, employers' participation in the Commonwealth's drug-free workplace program is voluntary.

What are the Requirements for Drug Testing Labs in Kentucky?

Only labs certified in accordance with the National Laboratory Certification Program (NLCP) may collect and test employees' specimens for workplace drug testing in Kentucky. Also, such laboratories should have the ISO/IEC 17025 accreditation. Samples collection must be done under reasonable and sanitary conditions and with due regard to employees' privacy. In addition, drug test administration must comply with all protocols and standards established by the United States SAMHSA (Department of Health and Human Services Substance Abuse and Mental Administration).