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Summary of differences between federal and state regulations
Medical marijuana
Medical marijuana should be treated as a prescription drug with respect to drug testing, but there are restrictions on its use for those in safety-sensitive positions and exceptions to the law for those required to be tested under federal regulations.
An employer may prohibit the ingestion possession, transfer, display, or transportation of cannabis in the workplace. Employees can be prohibited from working under the influence of cannabis, and the law allows employers to discipline employees for ingesting cannabis in the workplace or working under the influence of cannabis. The law defines "under the influence of cannabis” 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.
Employers may enforce a drug-free workplace policy. The policy may include drug testing, and an employer may take action under the policy.
The law does not authorize individuals to perform a safety-sensitive role while under the influence of cannabis, and they may be penalized if they do so. A safety-sensitive job is defined as any position with tasks or duties that an employer reasonably believes could cause the illness, injury, or death of an individual or result in serious property damage.
The law also calls for employers to provide medical marijuana patients with the same rights as those who are taking prescription drugs. The law states that:
A registered qualifying patient who uses cannabis for a medical purpose shall be afforded all the same rights under state and local law, as the person would be afforded if the person were solely prescribed a pharmaceutical medication, as it pertains to:
- Any interaction with a person’s employer;
- Drug testing by a person’s employer; or
- Drug testing required by any state or local law, agency, or government official.
The law does not apply 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.
An employer cannot be penalized or denied benefits under state law for employing a medical marijuana cardholder.
Recreational marijuana
South Dakota has no laws legalizing recreational marijuana.