June 15, 2021

This paid piece is sponsored by Woods, Fuller, Shultz & Smith PC.

By Seth Lopour, attorney

On July 1, 2021, medical marijuana will be legal in South Dakota. As of this date, medical practitioners can begin prescribing medical marijuana for certain debilitating medical conditions, and qualifying residents can begin consuming it to alleviate symptoms.

The current statutes provide a basic legal outline for medical marijuana use in South Dakota; however, there are several issues yet to be addressed.

The South Dakota Department of Health will issue its regulatory framework for medical marijuana by Oct. 29, 2021. These regulations will offer further guidance on how this industry will not only be regulated, but also how employers will be impacted by this new legislation.

With medical marijuana considered legal at the state level and remaining illegal under federal law, this legislation creates unique challenges for employers. From making initial hiring decisions to regulating its use in the workplace and making disciplinary decisions, South Dakota’s legalization of medical marijuana is going to have a profound impact on employers.

Some of the questions that have arisen include:

• Can I refuse to hire someone who uses medical marijuana?
• Can I rescind a job offer based on a positive marijuana drug test?
• Can I terminate an employee for a positive marijuana drug test?
• How does this impact our existing drug-testing policy?
• How much medical marijuana can an employee have on their person?
• How does the Americans With Disabilities Act come into play?
• I have a drug-free work policy, how is this impacted by medical marijuana legislation?
• Do I need to update our employee handbook?
• Do I have to make an accommodation for medical marijuana?
• Do I have to allow an employee to consume medical marijuana at work?
• Do I have to allow an employee to store medical marijuana at work?
• Should I test for marijuana use?
• How do I test for marijuana use?
• We are required to meet federal contractor requirements; do those still apply?
• Can I ask to see an employee’s written certification for medical marijuana?

Answers to these questions may not be the same in every context. Each employer will encounter unique circumstances depending on size, industry and labor force.

The employment law attorneys at Woods, Fuller, Shultz & Smith PC are prepared to advise employers on the impact of medical marijuana to their workplace, including updating policies and procedures to ensure compliance with the new legislation. Visit woodsfuller.com for information.