New South Dakota Law Removes Workplace Protections For Medical Marijuana Patients In Safety-Sensitive Jobs

South Dakota’s Gov. Kristi Noem (R) signed a bill into law this week that would roll back employment protections medical marijuana patients slightly, allowing employers to take action against people who test positive for THC if they work in a safety-sensitive position.

The bill, SB 12, also clarifies that discipline or termination for violating a drug-free workplace policy is not grounds for an employment discrimination or wrongful termination claim.

The change adds clear boundaries to the state’s workplace drug law, which says that “a registered qualifying patient who uses cannabis for a medical purpose shall be afforded all the same rights under state and local law, as the person would be afforded if the person were solely prescribed a pharmaceutical medication.”

SB 12‘s adoption means that’s no longer the case for safety-sensitive workers, which include positions like pilots, construction workers, healthcare professionals, teachers, nursing home employees, truck drivers and others.

While state law already contains a provision specifying that no employer is required to “allow any employee to work while under the influence of cannabis,” testing positive for THC or its metabolites does not mean that a person is impaired on the job, as evidence can be detectible in a person’s bloodstream for days or weeks after consuming marijuana.

On one hand, the change brings South Dakota in line with other states that have established anti-discrimination protections for workers who use marijuana but excluded safety-sensitive positions. On the other hand, the move to limit workplace protections around cannabis rather expand them makes South Dakota an outlier relative to recent trends.

Another bill Noem signed into law this week requires medical marijuana patients to check off a box on their registry application in order to affirm that they’re aware of federal law prohibiting cannabis consumers from buying and possessing firearms.

Advocates in the state are working to qualify a broader adult-use legalization measure for November’s ballot. Organizers say losing again at the ballot following South Dakota voters’ rejection of a legalization measure in 2022 is “not an option.” Voters had approved an earlier measure to legalize cannabis in 202o but it was overturned by the state Supreme Court.

Meanwhile, cannabis-related employment policies have been a major topic across the country amid the marijuana legalization movement.

As marijuana legalization began to take effect in Ohio late last year, for example, Cleveland Mayor Justin M. Bibb (D) announced that the city had “modernized” its drug testing policies for applicants for city jobs, eliminating “antiquated language around pre-employment marijuana testing that has previously hindered hiring efforts.”

And a Washington, D.C. law went into effect in July that bans most private workplaces from firing or otherwise punishing employees for marijuana use during non-work hours.

Michigan officials approved changes to the state’s employment policy last summer, making it so applicants for most government jobs will no longer be subject to pre-employment drug testing for marijuana.

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New York provides broader employment protections for adults who legally use cannabis during off-hours and away from work.

Virginia’s House and Senate also recently passed legislation to prevent public workers from being fired for legal marijuana use, expanding a protection that already exists in the state for private employees.

California and Washington State had anti-discrimination laws around cannabis take effect earlier this year. In Washington, the new law will protect workers from facing employment discrimination during the hiring process over their lawful use of cannabis, though they could still be fired for using marijuana after being hired.

In California, employers are now prohibited from asking job applicants about past cannabis use, and most are also barred from penalizing employees over lawful use of marijuana outside of the job. Separate complementary legislation signed by Gov. Gavin Newsom (D) in 2022 says it’s unlawful for employers “to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon” off-duty marijuana use or drug tests that reveal cannabinoid metabolites.

In New Jersey, meanwhile, police and local leaders are facing off over a state policy that allows sworn officers to use marijuana while off-duty. Jersey City has sued, however, arguing the policy forces the city to violate federal firearms laws. Police groups are trying to dismiss the suit.

Even as expanded workplace protections take effect in Washington, however, some in the state have tried to impose further limits. A bill sponsored by Reps. Tom Dent (R) and Lauren Davis (D) this session would have allowed employers to deny people who test positive for cannabis a position “as a substance use disorder professional or trainee, or any position as a health care professional licensed or certified…where the person will be providing services directly to clients or patients receiving treatment for substance use disorder.”

The restriction, which did not pass out of committee, would have added to the state law’s current list of exemptions, which already includes law enforcement, jobs requiring a federal background investigation or security clearance, fire departments, first responders, safety-sensitive positions, corrections officers and those in the airline or aerospace industries.

Photo courtesy of Philip Steffan.