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South Dakota Drug Testing Laws and Regulations

State: South Dakota
Statute of Order: S. Dak. Cod. Laws Ann. §23-3-64
Covered Employers: State government.
Applicant Testing: Testing authorized of applicants for safety- sensitive state jobs after offer of employment, but public announcements and advertisements must carry notice of drug-testing requirements.
Employee Testing: Testing authorized of state employees holding safety-sensitive jobs if there is reasonable suspicion of substance abuse.
Conditions & Methods: Availability of test findings to applicants and employees on written request and methods to ensure confidentiality of test findings.
Important Bulletpoints:
  • In the State of South Dakota, drug dealer liability is legislated wherein employers may bring action to economic, non-economic, and exemplary damages as well as legal fees against drug dealers who directly or otherwise participated in the illegal drug market that brought an employee to possession and use of drugs.
  • South Dakota’s Bureau of Personnel implements a drug screening program for applicants and employees of particular State facilities that provide patient or resident care or supervision. For current employees the screening may be conducted only on the basis of reasonable suspicion of illegal drug use.
  • Employers must pay for the cost of drug testing that they require of their employees. To compel an employee to pay for the cost of a medical examination required by the employer as a condition for employment is a Class 2 misdemeanor in South Dakota.
  • The definition for willful misconduct includes intentional intoxication, the use of illegal drugs, or failure or refusal to perform a duty required. An employee’s Injury or death due to willful misconduct is not compensable as per provisions under workers’ compensation.
  • South Dakota Drug Testing Law:

    South Dakota does not have comprehensive drug testing law. In this case, private employers in South Dakota are at liberty to choose and implement drug testing program for their potential and current employees. In the case of public employees, South Dakota drug testing law requires that particular state agencies implement drug testing to applicants in jobs that are safety-sensitive. Examples of safety-sensitive positions are law enforcers, rehabilitation/treatment personnel, transportation and aviation and such.

    Requisites of South Dakota Drug Testing:

    A current employee working in a safety-sensitive occupation may be obliged to undergo South Dakota drug testing if there is a plausible cause that the particular employee is illegally using drugs. The results of the drug testing are to be kept confidential. If the employee wishes to access the test results, a written request is needed.

    Any advertisement for a job opening in safety-sensitive positions must include a statement that says drug testing is required.

    Employers are required to pay for an employee’s drug testing. In the event that an employee wishes to repeat his drug tests, he must pay for the cost. In the event that an employee suffers an injury or possibly death due to his drug or alcohol use at work, he is not qualified for worker’s compensation. In this regard, an employer has the right to administer South Dakota drug test if there is reasonable basis that the particular employee was using illegal drugs when the work-related accident happened.

    Employee’s Legal Claims for South Dakota Drug Testing:

    South Dakota drug testing law does not put a limit on an employer’s privilege to drug test his employees. In case an employee finds that his drug test was illegal, he has the following proviso he can rely on.

    Based on the ACA (Americans with Disability), an applicant or employee with disability who is taking drugs for his legally-prescribed medication is not liable for a positive drug test.

    An employer cannot single out a group of applicants or employees (i.e. based on race, gender, religion, age) to undergo South Dakota drug testing.

    Employers are mandated to facilitate utmost employee privacy in conducting drug testing in South Dakota.

    An employer does not have the right to knowingly publicize an employee’s false positive drug test results. An employer is liable for defamation if he knew that the drug test result was incorrect but nevertheless, published it.

    Medical Marijuana Law:

    There is no medical marijuana program in the state of South Dakota.

    A ballot initiative that would have created South Dakota medical marijuana program did not earn enough relevant signatures to be included in the November 8, 2016 general elections. New Approach South Dakota spearheaded the ballot initiative. The irrelevant signatures were questioned through the court, as those signatures should have been considered legitimate. However, the effort was unsuccessful.1

    South Dakota Legislature called the ballot initiative as SB 171. The hearing for the bill was set on February 17, 2016, but the Senate Committee on Health and Human Services revised the bill, allowing CBD oil with less than 3% THC. The amended bill also stipulated that a qualified physician prescribe the CBD oil, which under the federal law is not allowed. The Senate passed the bill but failed in the House. SB 171 would have authorized the limited use of particular types of cannabis.

    As of this moment, there is no pending medical marijuana program in South Dakota but a hearing on medical marijuana may be deemed as a positive step for the passing of this bill in 2018.

    Recreational Marijuana Law

    There is no bill pertaining to the legalization of marijuana in South Dakota. As a matter of fact, a person caught in possession of a small amount of cannabis may be sent to jail for a year and fined $2,000. Any person who tested positive is also subjected to penalty even if he consumed cannabis in a legal state. Possession of concentrates or hash is a felony with a 5-year jail time and up to $10,000 fine.

    Effects on Workplace Drug Testing

    There is no drug testing law in the state of South Dakota. The law of the South Dakota has no clause that addresses drug testing of employees in private companies. This means that private corporations are not restricted from requiring their applicants and employees to undergo drug testing. Employees who deem that their drug testing is illegal may file complaints under discrimination, defamation and invasion of privacy. Government employees in safety-sensitive jobs are required to undergo drug testing. Private employees working in safety-sensitive jobs may be required to undergo drug testing if there is reasonable cause.


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    Material on these pages (state drug testing laws and drug testing regulations) is provided for informational purposes only and does not constitute legal, medical or technical advice. This drug testing related information is not intended as substitute for obtaining legal advice from attorney, or a relevant medical technical or financial professional. TestCountry is not a law firm or a legal agency, therefore cannot guarantee the accuracy of this content. Drug testing laws are collected from legal and/or state sources, and it may or may not be valid by the time you are viewing it. Any views or opinions expressed are solely those of the author and do not necessarily represent those of Confirm Biosciences Inc. DBA TestCountry.


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