South Dakota recently enacted Senate Bill 5 (SB 5) which strengthens employer protections surrounding the subject of medicinal marijuana and how it affects the workplace. Effective July 1, 2022, employers are allowed to specifically prohibit the “ingestion, possession, transfer, display, or transportation of cannabis” and are not required to accommodate these mentioned situations. This amendment provides clarity for employers as the law was largely silent (with the exception of employees working in “safety-sensitive jobs”) on employment actions that could be taken by an employer related to the use of medicinal marijuana in the workplace.
Additionally, SB 5 now allows employers to establish their own drug-free workplace policies which may include incorporating a drug-screening program to test applicants or current employees, provided the screening program complies with federal and state privacy laws.
Next Steps for Employers
Employers who have an existing policy can enforce specific provisions of their drug-free workplace policy to mitigate risk while maintaining compliance surrounding state law and off-duty use of medicinal marijuana. Employers who currently do not have an establish drug-free workplace policy may implement a policy that complies with both federal and state law.
Those employers that opt to drug test should consider how to address screening for marijuana and should proceed with caution as a test can produce of positive result without an active impairment due to the length of time that marijuana can remain in one’s system, and a positive result on its own may not pinpoint when or if it was “ingested” in the workplace.
It is recommended that employers consult with legal counsel to ensure compliance with the employment law and any other facets of legislation that may come into play surrounding drug screenings.
