South Dakota does not have a stand alone statute that requires or regulates private sector workplace drug testing the way some states do. There is no South Dakota law that forces an employer to adopt a testing program, and none that spells out collection procedures, notice periods, or split sample rights for a general private employer policy. Instead, testing in South Dakota sits inside the state's at will employment doctrine, with a few statutes that touch the edges, workers compensation, unemployment insurance, and medical cannabis. This post walks through what each of those statutes actually says, and where the rules are silent, says so rather than guessing.
Does South Dakota require or regulate private employer drug testing?
No general statute does either. South Dakota is an at will employment state, and outside of a contract or collective bargaining agreement, an employer may generally be able to condition hiring or continued employment on a drug test without a specific state law authorizing or limiting that choice. Because there is no dedicated testing statute, there is also no state mandated written policy requirement, no state mandated confirmation method, and no state mandated split sample right for a private employer's general workplace program. Employers who want those safeguards, confirmation testing at a certified laboratory, a documented chain of custody, a written policy distributed in advance, typically build them in voluntarily because they reduce legal risk, not because South Dakota law demands them. The complete current text of South Dakota's codified laws is maintained by the South Dakota Legislative Research Council, and employers who want to confirm that no new testing statute has been adopted since this post was written should check that portal directly rather than rely on a secondary summary.
Workers compensation and intoxication
South Dakota's workers compensation law does not create an automatic positive test presumption the way some states do. Under SDCL 62-4-37, no compensation may be allowed for an injury or death caused by the employee's own willful misconduct, and the statute lists intentional self inflicted injury, intoxication, illegal use of a schedule I or schedule II controlled substance, and willful failure to use a furnished safety appliance as qualifying misconduct. The statute puts the burden of proof on the employer, meaning the employer, as the defendant in a workers compensation claim, has to prove the willful misconduct actually caused the injury. A positive post accident drug test can be part of that proof, but SDCL 62-4-37 itself does not say that a positive test automatically establishes causation or automatically bars benefits. Employers that rely on post accident testing to support a compensability defense should document the connection between the substance found and the accident, not just the test result by itself.
Unemployment insurance and misconduct
South Dakota's unemployment statute does not single out drug testing as its own category of disqualifying conduct. The general standard is set in SDCL 61-6-14.1, which defines misconduct for unemployment purposes as a failure to obey orders, rules, or instructions, or failure to perform assigned duties, a substantial disregard of the employer's interests or the employee's own duties, conduct showing willful or wanton disregard of standards of behavior the employer has a right to expect, or carelessness or negligence severe or repeated enough to show equal culpability. The same statute excludes mere inefficiency, unsatisfactory conduct, a good faith error in judgment, or inability to perform. Because there is no drug test specific disqualification rule, a termination tied to a failed or refused test under a clear written policy may be able to qualify as misconduct if it fits one of these categories, most often the substantial disregard or willful disregard prongs, but the outcome depends on the facts of each claim and how South Dakota's Department of Labor and Regulation applies SDCL 61-6-14.1 to that record, not on a separate drug testing statute.
| Area | Statute | What it establishes |
|---|---|---|
| General private employer testing | None identified | No South Dakota statute mandates or regulates private sector workplace drug testing; at will employment principles apply |
| Workers compensation intoxication defense | SDCL 62-4-37 | No compensation for injury caused by willful misconduct, including intoxication or illegal schedule I/II drug use; employer carries the burden of proof |
| Unemployment misconduct standard | SDCL 61-6-14.1 | General misconduct definition; no drug test specific disqualification language, so a test related termination is evaluated against the general standard |
| Medical cannabis and employment | SDCL 34-20G-22 | Registered patients get parity with prescription drug users for most employer interactions, but adverse action and refusal to hire stand for a positive cannabis metabolite test in a safety sensitive job |
| Safety sensitive job definition | SDCL 34-20G-1(24) | A position with tasks an employer reasonably believes could cause illness, injury, or death, or result in serious property damage |
| Federally regulated transportation roles | 49 CFR Part 40 | DOT collection, laboratory, MRO, and reporting rules apply regardless of state law |
Medical cannabis and workplace drug testing
South Dakota's medical cannabis program, created by Initiated Measure 26, includes an employment provision that is narrower than it first appears. SDCL 34-20G-22 says a registered qualifying patient who uses cannabis for a medical purpose must generally be afforded the same rights under state and local law that the person would have if solely prescribed a pharmaceutical medication, as it relates to interactions with an employer and to drug testing by an employer or by any state or local law, agency, or official. That parity language stops at the safety sensitive line. The same section states that nothing in it prohibits an employer from taking adverse employment action based solely on a positive test result for cannabis metabolites if the person holds a safety sensitive job, and nothing prohibits an employer from refusing to hire an applicant on the same basis if the job being sought is safety sensitive. SDCL 34-20G-1(24) defines a safety sensitive job as any position with tasks or duties an employer reasonably believes could cause the illness, injury, or death of an individual or result in serious property damage, a definition broad enough to reach many warehouse, equipment operation, and healthcare roles, not only transportation jobs. For employees outside a safety sensitive role, the practical effect of SDCL 34-20G-22 is that a positive cannabis metabolite result tied to registered, documented medical use generally may be able to require the same handling an employer would give a positive result tied to a verified prescription, which typically means routing the result through confirmation and medical review before any adverse action, rather than treating the screen alone as final.
Public sector and drug free workplace programs
South Dakota's codified laws do not include a dedicated public sector drug free workplace testing statute comparable to the private sector programs some other states authorize for workers compensation premium discounts. Individual state agencies and political subdivisions may maintain their own testing policies for specific safety sensitive public roles, but those sit in agency personnel rules rather than in a statewide codified law. Employers, including public employers, should verify current personnel policy directly with the relevant agency or with the South Dakota Legislative Research Council's codified laws portal rather than assume a specific program exists, since this is an area where the rule varies by employer rather than following one statewide statute.
DOT and other federally regulated positions
None of South Dakota's state level provisions override federal testing requirements for employees in safety sensitive transportation roles. Drivers, pilots, and other workers covered by Department of Transportation testing rules are tested under 49 CFR Part 40, which sets its own collection, certified laboratory, medical review officer, and reporting requirements regardless of what state law allows or requires for non covered employees. A South Dakota employer running a DOT covered fleet follows Part 40 for those positions and may apply its own at will testing practices, built around the same at will framework described above, for everyone else. For a closer look at how DOT testing differs from a general workplace program, see our breakdown of DOT versus non DOT drug testing.
Employers weighing how a medical cannabis card changes a safety sensitive hiring or discipline decision may also want to read our look at what employers can still do under marijuana legalization, since the safety sensitive carve out in South Dakota tracks a pattern used in several other states. For sourcing compliant cups, dip cards, and oral fluid devices to support a documented collection process, American Screening Corporation's drug test cup collection includes panels configured for common workplace screening needs.
Frequently asked questions
Does South Dakota require private employers to drug test?
No. South Dakota has no general statute requiring or specifically regulating private employer drug testing. Testing policy sits inside the state's at will employment framework rather than a dedicated testing law.
Does a positive drug test automatically block a workers compensation claim in South Dakota?
Not automatically. SDCL 62-4-37 bars compensation for an injury caused by willful misconduct, including intoxication or illegal use of a schedule I or II drug, but the employer carries the burden of proving the misconduct actually caused the injury, rather than relying on the test result alone.
Can a worker lose unemployment benefits for failing or refusing a drug test in South Dakota?
There is no drug test specific disqualification statute. A termination tied to a failed or refused test under a written policy is evaluated against the general misconduct standard in SDCL 61-6-14.1, which covers substantial or willful disregard of an employer's interests and standards of behavior.
Can a registered medical cannabis patient be fired for a positive THC test in South Dakota?
SDCL 34-20G-22 gives registered patients parity with prescription drug users for most employer interactions, but it does not stop adverse action or a refusal to hire based solely on a positive cannabis metabolite result if the position is a safety sensitive job as defined in SDCL 34-20G-1(24).
Do DOT drug testing rules still apply inside South Dakota?
Yes. Employees in safety sensitive transportation roles covered by federal rules are tested under 49 CFR Part 40 regardless of state law, and South Dakota's at will framework applies to positions outside that federal coverage.
Is there a South Dakota drug free workplace program for a workers compensation premium discount?
South Dakota's codified laws do not include a dedicated statewide drug free workplace testing program comparable to those some other states authorize. This is an area that varies by employer and insurer, so employers should confirm current rules directly with the South Dakota Legislative Research Council's codified laws portal or their workers compensation carrier.
This article is general information about South Dakota law and is not legal advice. Employers should consult qualified counsel before adopting or changing a drug testing policy.
