Has your employer or prospective
employer in South Dakota asked you to take a drug test? Federal law places few
limits on employer drug testing: Although the federal government requires
testing by employers in a few safety-sensitive industries (including transportation,
aviation, and contractors with NASA and the Department of Defense), federal law
doesn’t otherwise require – or prohibit drug tests. For the most part, state
and local laws determine whether an employer may test employees and applicants
No Drug Testing Law in South Dakota
Although many states have passed laws
regulating or restricting an employer’s right to require drug testing, South
Dakota has not. South Dakota law does not address drug testing in private
employment. This means that private employers are not prohibited or restricted
from drug testing applicants and employees.
Legal Claims for Drug Testing
Because South Dakota law doesn’t
limit an employer’s right to drug test, employees who believe their test was
illegal will have to rely on other legal theories. For example, an employer may
run into legal trouble based on who is tested or how the test is conducted.
Here are some examples:
discrimination. The Americans with Disabilities Act (ACA) protects an applicant
or employee who is taking medication for a disability. Some prescribed
medications can result in a positive result on a drug test, and some drugs that
would otherwise be illegal (such as opiates) are legitimately prescribed for
certain conditions. If an applicant is turned down because of a positive drug
test, and the applicant's medication was legally prescribed for a disability,
the company could be liable.
discrimination claims. An employer who singles out certain groups of employees
– for example, by race, age, or gender– for drug testing could face a
of privacy. Even an employer that has a legitimate reason to test might violate
employee privacy in the way it conducts the test. For example, requiring
employees to disrobe or provide a urine sample in front of others could be a
privacy violation, depending on the circumstances.
An employee might have a valid claim for defamation if the employer publicizes
a false positive result, if the employer acts in bad faith and knew (or should
have known) that the result was incorrect.