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South Dakota Updates Its Cannabis Workplace Regulations  

South Dakota Senate Bill 12 (SD S 12), also known as the “Cannabis in the Workplace Act,” was signed by the Governor on February 15, 2024. This legislation modifies the legal landscape surrounding cannabis use and employer policies in the state.  

While South Dakota remains a non-recreational cannabis state, employers should be aware that registered qualifying patients who use cannabis for medical purposes have the same state and local rights as someone who takes pharmaceutical medications in relation to any interaction with their employer, including workplace drug testing. However, employers are not: 

  • Prohibited from taking adverse employment actions (e.g., suspension, termination, etc.) based solely on a positive test result for cannabis metabolites if the person works in a safety-sensitive job; or 
  • Required to allow cannabis in the workplace or allow anyone to work under its influence. 

The law explicitly states that employers can establish and enforce drug-free workplace policies, including drug testing programs. This means employers still have the right to discipline or terminate employees based on their internal policies regarding cannabis use, regardless of the law’s limitations. The law also clarifies that it does not affect any drug testing required by federal law, agency, or government official (i.e., DOT). 

Further, the law emphasizes that employers must still comply with existing state and local laws regarding cannabis use and employment. This includes any potential local ordinances that have stricter regulations or protections related to cannabis use in the workplace compared to state law. 

Next Steps 

Employers should review and update existing policies to ensure they are clear, consistent, and compliant with the law and other relevant regulations. 

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. 

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.