Caution: A qualifying medical marijuana patient cannot be considered under the influence solely because of the presence of marijuana metabolites or components that appear in “insufficient concentration to cause impairment.” A qualifying patient must be afforded all rights by an employer that would be afforded an employee using
prescription medication; this specifically pertains to workplace drug testing.
November 2020 the people passed legislation and an amendment to their constitution about marijuana.
For medical marijuana effective 7-2021, program operationalization no later than 4-2022
For recreational marijuana effective 7-2021, operationalization is unknown.
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 takes effect July 21, 2021.
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.
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).
Employers do not have to accommodate use or the employee being under the influence at the workplace.
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.”
Does not restrict employers from prohibiting the use of marijuana in the workplace, or
From terminating an employee who reports to work under the influence of marijuana.
South Dakota SB 95 (2017) removed cannabidiol (CBD oil) from the definition of marijuana and down-graded its schedule, but sanctions only CBD oil if it is FDA-approved.
The U.S. Farm Bill opened the door for sales of hemp-derived CBD.
See Significant above.
See Significant above.
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.
South Dakota Initiated Measure 26 – Medical marijuana
South Dakota SB 95 – CBD related
South Dakota Codified Laws Ann. 61-6-14 to 14.1 – Unemployment related
South Dakota Codified Laws Ann. 62-4-37 – Workers’ compensation related
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.
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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