South Dakota drug testing laws for employers: pre-employment testing rules (2026)

South Dakota has no statewide law that regulates drug testing by private employers in general, as of October 2026: we found no general testing statute in the South Dakota Codified Laws, and the rules that matter sit in the medical cannabis law, SDCL chapter 34-20G, which voters adopted as Initiated Measure 26 in 2020. That chapter lets employers keep a drug-free workplace policy with a testing program and act on applicants under it (SDCL 34-20G-24). But a registered qualifying patient must get the same rights in employer drug testing as someone prescribed a pharmaceutical medication (SDCL 34-20G-22), and refusing to hire on a cannabis-only positive is expressly allowed only for a safety-sensitive job. Adult-use marijuana is not legal in South Dakota.

Does South Dakota have a drug testing law for private employers?

Not a general one. South Dakota does not set notice, written-policy, laboratory or confirmation rules for private employers in statute, so those decisions belong in your policy. Our guide to hiring employees in South Dakota reached the same conclusion. The provisions that do apply are:

• the employment sections of the medical cannabis law, SDCL 34-20G-22, 34-20G-23 and 34-20G-24, with definitions in 34-20G-1;
• the workers' compensation misconduct rule, SDCL 62-4-37; and
• federal rules for DOT-regulated jobs and federal contractors.

What does South Dakota's medical cannabis law let employers do?

SDCL 34-20G-24, from Initiated Measure 26 (approved November 3, 2020, effective July 1, 2021) as amended in 2022 and 2024, sets out three employer rights:

1. "No employer is required to allow the ingestion, possession, transfer, display, or transportation of cannabis in any workplace or to allow any employee to work while under the influence of cannabis."
2. "No employer is prohibited from establishing and enforcing a drug-free workplace policy, which may include a drug testing program that complies with state and federal law, or acting with respect to an applicant or employee under the policy."
3. "No cause of action is created for employment discrimination or wrongful termination arising from an employer's enforcement of a drug-free workplace policy in compliance with this chapter."

The phrase "in compliance with this chapter" matters: the protection from lawsuits covers a policy that respects the patient rights in section 34-20G-22, not one that ignores them.

What rights do registered medical cannabis patients have in hiring?

SDCL 34-20G-22 says a registered qualifying patient "must be afforded the same rights under state and local law, as the person would be afforded if the person were solely prescribed a pharmaceutical medication," as it pertains to any interaction with the person's employer, drug testing by the employer, and drug testing required by state or local law. The section then sets two limits:

• nothing prohibits adverse employment action "based solely on a positive test result for cannabis metabolites, if the person is employed in a safety-sensitive job"; and
• nothing prohibits "refusing to hire a person, based solely on a positive test result for cannabis metabolites, if the person is seeking employment in a safety-sensitive job."

SDCL 34-20G-23 adds that these rights do not apply to the extent they conflict with an employer's obligations under federal law or regulation, or would cost the employer a monetary or licensing-related benefit under federal law. DOT-regulated drivers and federal contractors therefore keep their federal rules.

What counts as a safety-sensitive job in South Dakota?

SDCL 34-20G-1 defines a "safety-sensitive job" as "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." The test turns on the employer's reasonable belief about the tasks, so it is only as strong as the record behind it. Before you test, list the positions you treat as safety-sensitive and the duties that put them there, such as operating vehicles or heavy equipment, handling hazardous materials, or caring for patients, and apply that list consistently.

How should a policy handle a registered patient's positive for a job that is not safety-sensitive?

The statute's benchmark is a prescription. In the federal model many private programs copy, a medical review officer who finds a legitimate medical explanation, such as a valid prescription, verifies the result as negative (49 CFR 40.137), and may separately report a significant safety risk (40.327). A cautious reading of 34-20G-22 gives a registered qualifying patient the same process:

1. route every positive through a medical review officer, who asks about prescriptions and registry cards;
2. for a cannabis-only positive from a cardholder applying for a job that is not safety-sensitive, do not withdraw the offer on that result alone;
3. keep enforcing the rest of the policy: no cannabis at work and no working "under the influence of cannabis," which 34-20G-1 defines by an abnormal condition depriving a person of "clearness of intellect and control," not by the presence of metabolites; and
4. record the decision and the reason, especially if you rely on a safety-sensitive designation or a federal obligation.

Is recreational marijuana legal in South Dakota?

No. Outside the medical program, SDCL 22-42-6 says "No person may knowingly possess marijuana," and possessing two ounces or less is a Class 1 misdemeanor. None of the measures on the Secretary of State's 2026 ballot questions page concerns marijuana. A THC positive from a candidate who is not a registered patient can be handled under your ordinary policy. For jobs performed in neighboring Minnesota or Montana, which treat cannabis differently, follow that state's rules.

How does South Dakota workers' compensation treat drug use?

SDCL 62-4-37 says no compensation is allowed for an injury or death "due to the employee's willful misconduct, including intentional self-inflicted injury, intoxication, illegal use of any schedule I or schedule II drug," and puts the burden of proof on the employer. A prompt post-accident test under a written policy is how an employer meets that burden.

Which federal rules still apply in South Dakota?

• DOT-regulated roles. Drivers and other covered transportation workers follow 49 CFR Part 40, with a verified negative pre-employment result before the first safety-sensitive function (49 CFR 382.301); 34-20G-23 yields to those obligations.
• Rescheduling. The April 28, 2026 final order moved FDA-approved and state-medical-license marijuana to Schedule III. DOT's Part 40 Q&A, updated May 15, 2026, says state cards and dispensary records are not a legitimate medical explanation, so a South Dakota registry card does not change a DOT result.
• Federal contractors follow the FAR Drug-Free Workplace clause.
• The ADA: a test for illegal drugs is not a medical exam, but prescription questions after a positive are; see pre-employment medical exams under the ADA.

What should staffing agencies placing workers in South Dakota do?

• Designate safety-sensitive work per job order. Use the client's job description to decide whether an assignment is safety-sensitive, and keep that decision with the order.
• Put the drug-free workplace policy in writing. 34-20G-24's safe harbor applies to enforcing a policy; have each worker sign it before the first assignment.
• Do not let one positive follow a cardholder everywhere. A registered patient screened out of a forklift order may still be placeable in an office order where the result should be handled like a prescription.
• Check registration separately in South Dakota staffing agency licensing.

For the rest of onboarding, see South Dakota E-Verify requirements and South Dakota background check laws.

South Dakota drug testing laws at a glance

A checklist before you test a candidate in South Dakota

1. Adopt a written drug-free workplace policy that covers applicants and says how registered patients are handled.
2. List your safety-sensitive positions and the duties behind each designation.
3. Use a laboratory that confirms positives and a medical review officer who asks about prescriptions and registry cards.
4. For a cardholder in a job that is not safety-sensitive, treat a cannabis-only positive like a lawful prescription.
5. Draft from the drug testing policy template, compare states in drug testing laws in hiring, and check neighbors North Dakota, Nebraska and Iowa for jobs across the line.