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Summary of differences between federal and state regulations
Medical marijuana
Voters passed Measure 26 in November 2020 to legalize medical marijuana. Under the new law, individuals with a debilitating medical condition can possess a maximum of three ounces of marijuana.
Employers must treat medical marijuana cardholders as they would a person who is taking a pharmaceutical medication. This pertains to the medical marijuana card holder’s interactions with the employer, workplace drug testing, and drug testing required by a state or local law, agency, or government official.
Employers may discipline employees for ingesting marijuana in the workplace or for working while under the influence of marijuana. However, they may not use a drug test showing “insufficient concentration to cause impairment” to prove a qualifying patient is under the influence of marijuana. (Note: There is no universally accepted concentration of marijuana that proves impairment.)
The law does not apply to an employer if it would conflict with the employer’s obligations under federal law or if it would disqualify an employer from a monetary or licensing-related benefit under federal law.
The law was scheduled to take effect on July 1, 2021, but the effective date has been delayed to July 1, 2022.
Recreational marijuana
Constitutional Amendment A, passed in November 2020, legalizes recreational marijuana but it is being challenged in court.
The amendment allows individuals over age 21 to possess up to one ounce of marijuana.
Under the amendment, employers are not required to permit or accommodate conduct authorized by the law. An employer may restrict the use of marijuana by employees.
On February 8, 2021, the Sixth Judicial Circuit Court ruled Amendment A to be unconstitutional. An appeal is pending before the South Dakota Supreme Court.
If the amendment is ruled to be constitutional, the state’s Department of Revenue will issue rules and regulations to enforce the law.