Recent years have seen a robust public discussion unfold over the legal status of cannabis in South Dakota. For employers, Senate Bill 12 represents a new chapter in this ongoing dialogue, which changes certain rules applicable to employees in “safety-sensitive jobs” who use cannabis for medical purposes.

In the 2020 general election, South Dakota voters approved an initiated measure that legalized medical cannabis for qualifying patients. Since then, the South Dakota Legislature has adopted modifications to the medical cannabis program.

One of the original provisions in the voter-approved medical cannabis laws applied to drug-testing in the workplace. While cannabis remains illegal at the Federal level, South Dakota law 34-20G-22 provides that employees who use medical cannabis must be afforded the same rights under state and local laws as other individuals who use other prescription medications with respect to their employment and drug screening.

Effective July 1, 2024, an exception to this general rule will go into effect for employees in or seeking “safety-sensitive jobs.” That is, going forward, South Dakota law will not prohibit adverse employment action taken solely on the basis of a positive test result for cannabis, if the employee is employed in a “safety-sensitive job.” Similarly, South Dakota law will not prohibit employers from refusing to hire a person based solely on a positive test result for cannabis, if that individual is seeking employment in a “safety-sensitive job.”

The phrase “safety-sensitive job” is defined fairly broadly to include any position with tasks or duties that the employer reasonably believes could (a) cause illness, injury, or death of an individual; or (b) results in serious property damage. As defined, these “safety-sensitive jobs” may include healthcare professionals, pharmacists, nursing home attendants, emergency medical technicians, truck drivers, and individuals operating heavy equipment or hazardous materials, such as construction workers, among others. Employers who are or may be operating in these industries may benefit from seeking legal advice to ensure compliance with this evolving area of the law.

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