South Dakota - Considerations for Marijuana in the Workplace

Medical
Marijuana Law:

Recreational
Marijuana Law:

No Broad Laws
Legalizing Marijuana*:

*Marijuana is either totally illegal, or there may be laws decriminalizing possession, or use of marijuana, or, the state may have a CBD law legalizing THC at a level constituting marijuana-derived CBD.

Employer Concerns – Significant to Review

  • November 2020 the people passed legislation and an amendment to their constitution about marijuana addressing both medical and recreational marijuana.
    • The legislation, Measure 26, made medical marijuana legal as well as the sale, delivery, manufacturing, and cultivation of cannabis for people with debilitating conditions. The legislation took effect July, 2021.
      • Requires that employers accommodate medical marijuana patients the same rights, “…under state and local law, as the person would be afforded if the person were solely prescribed a pharmaceutical medication,” unless this conflicts with the employer’s obligations under federal law or regulations (e.g., DOT mandates).
      • A qualifying patient shall not be denied any right of privilege for medical cannabis use.
      • Employers do not have to accommodate use or the employee being under the influence at the workplace.
      • Under the influence of cannabis is defined as “any abnormal mental or physical condition that tends to deprive a person of clearness of intellect and control that the person would otherwise possess, as the result of consuming any degree of cannabis or cannabis products.” Added via SB 5 in February 2022.
      • An employer may not consider an employee under the influence solely based on, “… the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment.”
    • Constitutional Amendment A which makes recreational use of cannabis for adults 21 and over protected by law. It also causes the South Dakota legislation to pass laws establishing a medical marijuana program by April 1, 2022.
      • Amendment A was ruled invalid on procedural grounds in 2021 which ended the recreational marijuana program in South Dakota.
  • South Dakota SB 17 (2022) states that, “…government medical assistance programs, private health insurers, workers’ compensation insurance carrier, or self-insured employer providing workers’ compensation benefits…” will not be required to cover the costs associated with medical use of marijuana.
  • South Dakota SB 95 (2017) moved cannabidiol (CBD oil) from Schedule I to Schedule IV in drug classifications (indicating it has a lower potential for being abused). However, South Dakota laws specified that possessing CBD oil is a felony except under specific exceptions and only if it is FDA-approved (which is solely Epidiolex at the current time).
  • The U.S. Farm Bill opened the door for sales of hemp-derived CBD and 3-2020 South Dakota legalized hemp-derived CBD not exceeding 0.3% THC cultivated by licensed businesses in the state.

Testing

Hiring/Termination

  • See Significant above.

Discipline

  • See Significant above.

Use/Possession

  • No smoking where there is a ban on smoking tobacco.
  • No smoking or other consumption in a public place unless licensed by the department of consumption.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • South Dakota law states that driving or having control of a vehicle, train, aircraft, motorboat, or other form of transport with a motor while under the control of marijuana (a substance ingested, inhaled, or otherwise taken into the body) is prohibited.
  • Conduct that endangers others is prohibited.
  • In South Dakota, it is prohibited to undertake any task under the influence of marijuana if doing so would constitute negligence or professional malpractice.
  • In South Dakota, grounds to deny an unemployment claim include being discharged for failure to obey the rules of an employer, which could constitute misconduct.
  • In South Dakota, an injury or death due to an employee’s intoxication can be grounds to deny workers’ compensation benefits.
  • Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)
  • South Dakota Codified Laws 34-20G – Medical marijuana
  • South Dakota SB 17 – Medical marijuana revision
  • South Dakota SB 95 – CBD related
  • South Dakota Amendment A sec. 3– Recreational marijuana
  • South Dakota Initiated Measure 26 – Medical marijuana
  • South Dakota SB 5 – clarification – Medical marijuana
  • South Dakota Codified Laws 32-23-1 – Driving under the influence
  • South Dakota Codified Laws Ann. 61-6-14 to 14.1 – Unemployment related
  • South Dakota Codified Laws Ann. 62-4-37 – Workers’ compensation related
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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