South Dakota Drug Testing Laws 2024

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South Dakota Drug Testing Laws 2024

South Dakota does not currently have a workplace drug testing law for private employers. Hence, employers are free to implement workplace drug testing policies without restriction. However, employers are expected to give employees copies of their written workplace drug testing policies. The policies will, at the minimum, state the consequences of failing or refusing a drug test and the frequency of testing.

South Dakota has a drug testing law for certain state employees. State employees involved with direct care and in safety-sensitive positions can be subjected to drug tests if there exists reasonable suspicion of illegal drug use. Local government authorities in South Dakota cannot independently create workplace drug testing ordinances.

What Kinds of Drug Tests Can Employers Conduct in South Dakota?

South Dakota employers can test for all illegal drugs as the state does not have any law regulating drug testing by private sector employers. They can test for such drugs as cocaine, cannabis, opioid, meth, barbiturates, MDMA, peyote, and PCP. In addition, many employers in South Dakota usually test for marijuana. Marijuana produces THC metabolites, which can be detected in the body several days after consumption. THC can be detected in blood, saliva, urine, and hair follicles. Employers can collect all specimens from employees for drug tests, although urine tests are the most common.

The workplace drug testing policy will indicate the kinds of drug tests employers can conduct, which may include the following:

  • Random Test: This test is done without prior notice being given to employees. The selection of employees to be tested must be without bias or discrimination
  • Pre-employment Test: This test is done as part of the employment process and as a condition for employment
  • Reasonable Suspicion Test: This is done if there is reasonable suspicion that an employee is using illegal drugs. Reasonable suspicion includes visible impairment or a documented history of on-the-job drug use
  • Periodic Test: This is a mandatory testing of employees within a specified time frame. The time frame can be biennially, annually, or biannually
  • Post-accident Test: This test is carried out on all employees involved in a workplace accident. It is used to determine if the use of drugs was a contributory factor to the accident
  • Probationary/Post-rehabilitation Test: This is done on an employee who has just completed a drug rehabilitation program to ensure that they remain drug-free

Employers in South Dakota can incorporate multiple kinds of drug tests in their drug testing policies.

Can Employers Do Random Drug Testing in South Dakota?

Yes. Employers in South Dakota can conduct random drug testing on employees as the state does not have laws preventing employers from conducting random drug tests. Typically, employers must notify employees of the possibility of random drug testing and the procedure to adopt. Employers must ensure that their random drug testing procedures are fair and non-discriminatory.

What Happens if You Fail a Drug Test in South Dakota for a Job?

Failing a workplace drug test in South Dakota can lead to dismissal, although no law regulates employers' actions in relation to drug test failures in the state. Generally, an employer’s workplace drug policy determines the actions to be taken after an employee’s failed drug test. Possible consequences of a failed drug test in South Dakota include mandatory drug education, probation, suspension, termination of employment, and loss of unemployment benefits.

There are very few employee protections for failing drug tests in South Dakota. Medical marijuana patients can avoid punishment if the drug test failure was due to the presence of THC metabolites in their system and they were not impaired by cannabis use. Also, violation of an employee’s civil rights is a potential legal protection. Another potential legal protection is if there is bias or discrimination in the selection of an employee for the drug test.

Can I Be Fired for Refusing a Drug Test in South Dakota?

Yes. An employer can fire an employee for refusing a drug test in South Dakota. There are no drug testing laws regulating private employers in the state. However, employees may be able to contest their employers’ decision of employment termination if they can provide valid reasons for refusing to take the tests. Possible reasons to contest such decisions include bias in selection for the test or lack of publicity of company policy on drug tests.

Can You Get Fired for Failing a Drug Test with a Medical Card in South Dakota?

Although medical marijuana is legal in South Dakota, registered medical cannabis patients can still be fired for failing drug tests. South Dakota Codified Law, Section 34-20G-24, prohibits a medical marijuana patient from working while intoxicated with cannabis, and a drug test conducted in that instance can lead to termination of employment if the test result turns out positive.

Can Employers Conduct Drug Tests on Applicants in South Dakota?

There are no laws prohibiting employers from conducting drug tests on applicants in South Dakota. Employers are free to determine the types of drug tests to conduct. Applicants that fail or refuse drug tests can be denied employment. Employers are expected to notify applicants of the possibility of drug testing as part of the selection processes, and they must get the consent of applicants before conducting the drug tests.

Is Pre-Employment Drug Testing Allowed in South Dakota?

South Dakota does not have a pre-employment drug testing law, but employers are not restricted from subjecting applicants with job offers to drug testing before their resumption. Typically, employers will have to warn applicants of the likelihood of drug testing before they can officially resume. They must also ensure that the tests are non-discriminatory and all applicants for the same position are tested. Job offers given to applicants can be rescinded if they fail pre-employment drug tests.

Does South Dakota Allow Public Agencies to Submit Employees to Workplace Drug Tests?

Certain state employees in South Dakota are required to submit to drug testing because of the nature of their jobs. South Dakota Administrative Rules, Chapter 55:05, mandates that employees in safety-sensitive positions and direct care staff be subjected to drug testing upon suspicion. These include highway patrol officers, employees of the Department of Corrections, medical personnel, teachers, social workers, and Wildland Fire Division employees. Applicants with conditional job offers and state employees being transferred to safety-sensitive positions are also subject to drug tests.

South Dakota employees must remain drug-free, and employees can be tested based on reasonable suspicion of drug use. Only urine samples may be collected for drug testing from eligible state employees. Also, a positive drug test must be confirmed using a different testing method. Per South Dakota Codified Laws 27B-1-19, community support providers are also permitted to implement drug testing policies for their employees and applicants whose duties involve patients’ care. They can initiate drug tests based on reasonable suspicion that an employee uses illegal drugs.

Can Employers Choose to Create Drug-Free Workplace Policies?

Yes, employers in South Dakota can choose to create drug-free workplaces, as no law prohibits them from doing so. Typically, drug-free workplace policies in the state must include the following:

  • A drug-free workplace policy statement
  • Drugs to be tested
  • Employees subject to testing
  • Circumstances for testing
  • Description of specimen to be collected
  • Description of testing procedure
  • Consequences of refusal to participate in a drug test
  • Consequences of failing a drug test
  • Policy statement on the confidentiality of test results

Employees Exempted From South Dakota Workplace Drug Testing Laws

There is no workplace drug testing law for private employers in South Dakota. Most state employees are exempted from drug testing except those specifically mentioned in SD AR 55:05 and SDCL 27B-1-19. Federal employees in South Dakota are regulated by federal drug testing laws and not South Dakota laws.

What are the Requirements for Drug Testing Labs in South Dakota?

South Dakota does not have drug testing laws, and there are no requirements for drug testing laboratories in the state. However, employers are encouraged to use laboratories certified by reputable agencies like the College of American Pathologists (CAP) and the Substance Abuse and Mental Health Services Administration (SAMHSA) for workplace drug tests.

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