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Summary of differences between federal and state regulations
Medical marijuana
South Dakota’s medical marijuana law calls for medical marijuana to be treated as a prescription drug with regard to drug testing. Employers may have a drug-free workplace policy that includes drug testing and may take action under that policy.
State law does not authorize individuals to perform safety-sensitive jobs while under the influence of cannabis. Safety-sensitive jobs are defined as positions with tasks or duties an employer believes could cause the illness, injury, or death of an individual or result in serious property damage. “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. The law does not prohibit testing as required under federal regulations.
Workers’ compensation
The state’s workers’ compensation law provides that an employee may be disqualified from receiving workers’ compensation benefits if the individual's injury or death was due to willful misconduct, including intoxication or the illegal use of drugs.
State employees
Testing is authorized for state employees in certain safety-sensitive positions if there is reasonable suspicion of illegal drug use.
Driver disqualification
A driver is disqualified from driving a commercial motor vehicle (CMV) for at least one year:
- If convicted of a first violation of driving or being in control of a commercial or noncommercial motor vehicle while under the influence of alcohol or any controlled drug or substance,
- For refusing to submit to chemical analysis for purposes of determining the amount of alcohol or drugs in a person’s blood or other bodily substance while driving a commercial or noncommercial motor vehicle.
The law also disqualifies a person from driving a CMV for leaving the scene of an accident, using a CMV in committing a felony, operating a CMV while a driver’s license is revoked, or if convicted of causing a fatality through negligent operation of a CMV.
State
Contacts
South Dakota Division of Labor and Management
Regulations
Workers’ compensation
S. D. Codified Laws Title 62, §62-4-37
State employees
S.D. Codified Laws Title 23, §23-3-64
Driver disqualification
S.D. Codified Laws Title 32, §32-12A-36
Federal
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document