South Dakota Supreme Court Rejects Recreational Marijuana But Medical Marijuana Law Not Affected
After months of speculation, the South Dakota Supreme Court recently struck down a constitutional amendment legalizing recreational marijuana because it violated the state’s single-subject rule. The Court held that because Amendment A, which was passed by South Dakota voters in November 2020, embraced three distinct subjects - recreational marijuana, hemp, and medical marijuana - voters could not separately vote on each subject. If voters had been able to vote on each subject, then they may have passed some portions of the amendment but not others.
So, what does this mean for employers? Recreational use of marijuana is still illegal in South Dakota and employers may discipline employees for recreational marijuana use. Employers should, however, expect future attempts to legalize recreational marijuana.
Medical marijuana, however, is still legal in South Dakota. South Dakota voters also passed Initiated Measure 26 in November 2020, a separate initiative apart from Amendment A that legalized only medical marijuana and did not amend the state constitution. The state recently set up a portal for physicians and patients and is issuing medical marijuana cards to patients.
The remaining portion of the law specifically states that employers may prohibit employees from ingesting cannabis in the workplace, from working while under the influence of cannabis, and that employers may refrain from doing anything that would conflict with obligations under federal law or disqualify an employer from receiving a monetary or licensing-related benefit under federal law.
But it also restricts employers from taking certain actions against an employee’s off-duty use of medical marijuana, including allowing employees the same rights under state or local law as a person who was solely prescribed a “pharmaceutical medication.” And even though marijuana is still illegal under federal law, there is a recent trend of state and federal courts concluding that employers must accommodate off-duty medical marijuana use in accordance with state law.
Employers should think about updating and maintaining a drug policy that follows the provisions of that measure which remain intact. Employers should also keep an eye out for further guidance or regulations that could impact their workplace and for any ensuing legal battles on the subject. Finally, employers should track further attempts to legalize recreational use in South Dakota, which are certain to occur.
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