SD Workplace Cannabis Protections — None (At-Will + SDCL § 34-20G-24)

Last verified: May 2026

SDCL § 34-20G-24 — The Express Employer Carveout

SDCL § 34-20G-24 expressly preserves employer rights regarding cannabis-using employees. The statute provides that nothing in the IM 26 framework:

• Requires an employer to permit, accommodate, or take any other action regarding cannabis in the workplace.
• Limits an employer’s right to maintain a drug-free workplace.
• Limits an employer’s right to discharge or take adverse employment action against an employee for cannabis use, including IM 26-authorized medical use.
• Affects the employer’s ability to enforce workplace drug-testing policies.

The carveout was a deliberate concession during the 2020 IM 26 drafting process. Conservative legislators argued that mandating employment accommodations would impose new compliance costs on SD employers and would interfere with employer-driven safety programs.

The Narrow Cardholder Carveout

The narrow protection: SDCL § 34-20G-24 specifies that "a registered qualified patient may not be deemed to be under the influence of cannabis simply due to the presence of cannabis metabolites or components in inadequate concentration to induce impairment." This is a meaningful protection — but it is narrow:

• Protects against impairment-presumption based on metabolite presence alone.
• Does not prevent employers from requiring negative drug tests.
• Does not prevent termination for positive THC tests.
• Does not extend to non-cardholders.

SD as At-Will Employment State

South Dakota is an at-will employment state. The doctrine permits an employer to terminate an employee at any time, for any reason or no reason, with very narrow statutory exceptions:

• Title VII protected classifications — race, color, religion, sex, national origin (federal).
• Age discrimination — ADEA for 40+ (federal).
• Disability discrimination — ADA (federal). Cannabis users are NOT protected even with documented IM 26 condition; cannabis use is not a disability under ADA, and Schedule I status (despite April 2026 Schedule III rescheduling) currently disqualifies medical-cannabis users from ADA protection.
• FMLA leave — for serious health condition treatment (federal).

The at-will doctrine + SDCL § 34-20G-24 carveout means SD employers can fire registered IM 26 patients for positive THC tests with virtually no legal exposure.

Drug-Testing Modalities Permitted

SD employers can lawfully conduct:

• Pre-employment testing. Standard for federal contractors, federal employees, manufacturing employers, healthcare employers, and many service-sector employers.
• Random testing. Standard for federal-employee positions, federally-regulated transportation positions (DOT, FAA, FMCSA), and many manufacturing-safety positions.
• Post-accident testing. Mandatory for OSHA-regulated workplaces after injuries.
• Reasonable-suspicion testing. Permitted when an employer has reasonable basis to believe an employee is impaired.

Workers’ Comp Implications

SD’s workers’ comp framework includes provisions disallowing benefits if injury was caused by employee impairment from controlled substances. For positive post-accident THC tests:

• Employer can challenge claim on impairment grounds.
• Worker bears burden of disproving impairment causation.
• Cardholder protection from "metabolite-only" presumption may apply if no other impairment evidence is presented.

The Federal Layer

Federal positions have stricter cannabis-testing requirements than SD state law:

• Federal employees — Executive Order 12564 (Reagan, 1986) requires drug-free federal workplace.
• Federal contractors — FAR 52.223-6 imposes drug-free-workplace requirements.
• DOT-regulated commercial drivers — 49 CFR Part 382 categorically prohibits cannabis use.
• FAA-regulated aviation positions — 14 CFR Part 67 categorically prohibits cannabis use.
• Federal cleared positions — SF-86 / Continuous Vetting issues.

The April 28, 2026 Schedule III rescheduling does not directly modify federal-employee or federal-contractor drug-testing requirements. The federal Department of Transportation, federal Department of Labor, and federal HHS have not yet revised their drug-testing rules in response to the schedule change.

Related on this site: SD Federal & Major Employers, Send a Message, Contact CannabisSouthDakota.org.