South Dakota Drug Testing Laws for Employers

Nothing in the Labor Code

SDCL Title 60 runs from chapter 60-1 through 60-15 and contains no drug, alcohol or testing provision. There is no policy requirement, no notice period, no collector or laboratory certification standard, no confirmation mandate, no medical review officer requirement, no retest right and no result deadline.

Random testing is unlimited as to procedure and selection method. Everything that matters here sits in the medical cannabis chapter.

The Parity Rule

SDCL 34-20G-22, from Initiated Measure No. 26 and amended in 2024, gives a registered qualifying patient who uses cannabis for a medical purpose the same rights under state and local law as a person solely prescribed a pharmaceutical medication, with respect to three things: any interaction with the person's employer; drug testing by the person's employer; and drug testing required by any state or local law, agency or official.

Parity with prescription medication is a stronger framing than most states use. It does not ask whether cannabis is lawful or whether metabolites show impairment — it asks how you would treat someone taking a prescribed drug, and requires the same treatment.

The Exception That May Swallow It

Two carve-outs follow in the same section, both limited to safety-sensitive jobs and both framed around adverse action based solely on a positive cannabis metabolite result: one permits adverse employment action against an employee, the other permits refusing to hire an applicant.

Now read the definition. SDCL 34-20G-1(24) defines a safety-sensitive job 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.

Three things make that broad. It is employer-assessed. It uses a reasonable-belief standard rather than an objective one. And it has no enumerated list and no requirement that the risk be immediate — unlike the District of Columbia, which requires actual, immediate and serious bodily injury, or Washington, which requires a substantial risk of death.

For most employers with any operational footprint, a good-faith designation covering the roles that genuinely carry those risks will be defensible. What will not be defensible is designating everyone, including roles where no honest reasonable belief of injury or serious property damage exists. The work here is documenting the designation role by role, before a positive result arises rather than after.

The Unresolved Case

SDCL 34-20G-24 preserves drug-free workplace policies and compliant testing programs, and creates no cause of action for enforcing one. SDCL 34-20G-28 preserves discipline for ingesting cannabis in the workplace or working while under the influence.

Read against the parity rule, the chapter points in two directions for one specific case: a card-holding registered patient, with a positive cannabis metabolite result, in a job the employer has not designated safety-sensitive. Whether the parity rule or the policy safe harbor controls there is not resolved on the face of the chapter. It is unsettled, it turns on how a court reads the sections together, and we are not going to pick a side.

Note also how South Dakota defines being under the influence of cannabis: an abnormal mental or physical condition standard, not a cutoff level. So the discipline route in 34-20G-28 rests on observation, not on the laboratory number.

Two further scope points. Protections apply only to registered qualifying patients — there is no off-duty-use protection and no recreational legalization. And both key sections were amended by session law in 2024 (and one again in 2022), so guidance older than that is stale.

Workers' Compensation Gives No Leverage

SDCL 62-4-37 denies compensation for injury or death due to willful misconduct, including intentional self-inflicted injury, intoxication, illegal use of any schedule I or schedule II drug, or willful failure to use a safety appliance or perform a statutory duty — and states expressly that the burden of proof is on the defendant employer.

Three features shape program design. There is no testing presumption, no per se cutoff, no authorization to compel a post-accident test and no forfeiture for refusing one, so unlike North Dakota next door, the compensation statute hands you no procedural leverage. The burden sits with you. And the drug prong is limited to schedule I and II substances, so a confirmed positive outside those schedules does not fit that clause — though the separate intoxication prong remains available.

One question the statute does not answer: whether medical cannabis lawfully used by a registered qualifying patient can support a denial under the illegal-use language. That is for counsel.

Where This Lands

South Dakota's employment base runs through hospital systems, agriculture and food processing, financial services and credit card operations, manufacturing, transportation and warehousing, and construction. Financial services is the sector where the safety-sensitive designation is hardest to make honestly — and therefore where the unresolved parity question is most likely to arise in practice.