On November 3rd, South Dakota voters approved Initiated Measure 26 (IM 26) to legalize medical marijuana and Amendment A to legalize recreational marijuana in South Dakota. Both IM 26 and Amendment A are not set to take effect until July 1, 2021. However, on November 20th, Pennington County Sheriff, Kevin Thom, and the Superintendent of the South Dakota Highway Patrol, Colonel Rick Miller, filed suit challenging the constitutionality of Amendment A. Thus, the future of Amendment A remains uncertain.
Davenport Evans lawyer Lori M. Rensink says employers should note that neither IM 26 nor Amendment A requires an employer to permit or accommodate the use of marijuana in the workplace. Employers have the ability to prohibit an employee from using or possessing marijuana in the workplace and from being under the influence of marijuana while at work.
Under the Americans with Disabilities Act, employers have the authority to regulate or prohibit the use or possession of alcohol and illegal drugs during work hours or on company property. As the Controlled Substances Act classifies marijuana as a Schedule I controlled substance, both medical and recreational marijuana are considered illegal drugs under the Americans with Disabilities Act. Furthermore, the Americans with Disabilities Act does not require employers to make accommodations for employees with use of medical marijuana, and the Americans with Disabilities Act does not protect medical marijuana users from discrimination for use of medical marijuana. However, states are free to offer greater protections to employees than is required by the Americans with Disabilities Act.
Under IM 26, South Dakota employers are required to afford a qualifying patient the same rights as afforded to a person who is prescribed a pharmaceutical medication. This requirement extends to drug testing, including that a qualifying patient cannot be conclusively determined to be presently under the influence of marijuana based solely on the presence of metabolites or components of cannabis in their drug test. Until technology develops that allows employers to test an employee for present impairment at work, employers should consider adopting a clearly defined and even-handed policy for identifying impairment in the work place.
Nevertheless, employers are not required to allow ingestion of medical marijuana at the workplace, to allow an employee to be impaired or under the influence while at work, or to allow any conduct that would disqualify the employer from a federal licensing or monetary related benefit. Furthermore, IM 26 allows an employer to discipline an employee for either ingesting medical marijuana at the workplace or for being under the influence or impaired while at work. Beyond these exceptions, IM 26 requires employers to treat employees who are qualifying patients the same as the employer would treat another employee who has a prescription medication.
We expect the South Dakota Legislature to refine South Dakota laws to accommodate these ballot initiatives. Employers need to pay attention to the ongoing lawsuit challenging Amendment A, as well as to changes to South Dakota laws that will take effect July 1, 2021. Employers should consider reviewing their current company policies prior to July 1, to ensure their current company policies comply with IM 26. For questions relating to IM 26 and Amendment A, contact Davenport Evans employment lawyers at 605-336-3880 or info@dehs.com.