Medical Cannabis Law in South Dakota - Legislative Update
Last year, the South Dakota Legislature made considerable efforts to offer more guidance on the contours of SDCL Ch. 34-20G, the statutes legalizing the cultivation, manufacture, sale and consumption of medical cannabis in South Dakota. After passage of this Initiated Measure, employers were left scrambling to determine what the new legislation meant for hiring practices, safety-sensitive positions, storage of medical cannabis in the workplace, and much more. Thankfully, the Legislature has answered some of these questions.
Some of the most significant additions to the statutes are definitions of “under the influence of cannabis” and “safety-sensitive job.”
A “safety-sensitive job” is any position with tasks or duties that an employer reasonably believes could: (a) Cause the illness, injury, or death of an individual; or (b) Result in serious property damage. SDCL § 34-20G-1(23).
"Under the influence of cannabis" means “any abnormal mental or physical condition that tends to deprive a person of clearness of intellect and control that the person would otherwise possess, as the result of consuming any degree of cannabis or cannabis products.” SDCL § 34-20G-1(24).
These definitions give employers considerable latitude in making disciplinary decisions when it comes to employees who test positive while in the course and scope of employment.
In addition, it is now very clear that employees do not have the absolute right to use medical cannabis in both public and private areas, or where doing so would be negligent or dangerous. Businesses can even prohibit the general public smoking and vaping cannabis in their buildings.
The Legislature has taken this one step further by not requiring them to allow employees to ingest, possess, transfer, display, or transport cannabis in the workplace. For employers with a fleet of vehicles or that expect employees to travel with work vehicles, this is particularly important.
This year, the Legislature has switched its focus on accessibility to medical cannabis. Most significantly, there are proposals to revise how and when a practitioner may issue a written certification and place additional requirements on the practitioner-patient relationship. Additionally, the statutory qualifiers for medical cannabis may now include a psychological component with the addition of Post Traumatic Stress Disorder. Lastly, a bill has been proposed to prohibit the issuance of registry identification cards to pregnant and nursing women.
The changes from last year, combined with the proposals thus far, will have wide-ranging effects on employers, business, medical cannabis cardholders, and the community of practitioners providing certifications.
Woods Fuller is following these changes closely and prepared to assist in the many ways this impacts our state. As a firm, we have a dedicated team providing guidance to medical cannabis to employers, municipalities, medical cannabis dispensaries and cultivators, cardholders, investors, health industries, and even in the context of family law.
