I. Is Drug & Alcohol Testing Required?
The Commissioner of Insurance shall promulgate such rules and regulations as to require each insurer to establish a safety program for the health and benefit of the employees of the insured employer. Such safety program shall include language to explain the rights of workers under the Workers' Compensation Law. Such safety program shall require that all insured employers implement a written policy for drug and alcohol testing in accordance with Section 71-7-1 et seq., Mississippi Code of 1972, in order to ensure that the workplace is a drug and alcohol free environment and to deter the use of drugs and alcohol at the workplace. Miss. Code Ann. §71-3-121 (Rev. 2000).
The Workers' Compensation Law seems clear in requiring that every employer insured under this Law should have a safety program which "shall" include a written drug and alcohol testing policy which complies with Miss. Code Ann. §71-7-1 et seq. (Rev. 2000), the purpose of which is to "ensure that the workplace is a drug and alcohol free environment and to deter the use of drugs and alcohol at the workplace." Regardless of whether the Commissioner of Insurance has promulgated appropriate regulations, and regardless of whether each insurer is providing the appropriate safety program assistance, in the end, §71-3-121 appears to establish a clear legislative intent that employers covered by the Workers' Compensation Law should have a drug and alcohol testing program which complies with the separate Drug and Alcohol Testing of Employees Law, Miss. Code Ann. §71-7-1 et seq. (Rev. 2000), as amended. 1 There is, however, no sanction or penalty in the Workers' Compensation Law for employers that do not have a suitable drug and alcohol testing policy in place. Consider also, the following: For the purposes of this chapter, the election of a public or private employer to conduct drug and alcohol testing is voluntary. If an employer elects voluntarily to follow this chapter, the employer must follow all the terms of this chapter without exception. Miss. Code Ann. §71-7-3(1) (Supp. 2004). * * * * * No cause of action shall arise in favor of any person based upon the failure of an employer to establish a program or policy for drug and alcohol testing. Miss. Code Ann. §71-7-25(6) (Rev. 2000). * * * * * A private employer may affirmatively elect to conduct an employee drug and alcohol testing policy or program pursuant to the provisions of this chapter. Miss. Code Ann. §71-7-27(1) (Rev. 2000).
Section 71-3-121 specifically refers to "insured" employers, but surely the legislative intent is that all employers "subject to" or "covered by" the Workers' Compensation Law should have a drug and alcohol testing policy, whether insured by a licensed carrier, self insured, or uninsured. Also, it is not known whether the Commissioner of Insurance has promulgated regulations pursuant to this statute; none could be found at www.doi.state.ms.us. It is also not known whether and to what extent insurers are assisting their insured with the implementation of safety programs, including drug and alcohol testing policies.
* * * * * Any private employer who does not make such an election . . . will be deemed to not be conducting an employee drug and alcohol testing policy or program pursuant to the provisions of this chapter, and in that event the rights and obligations of the employer and its employees and job applicants . . . will instead be governed by applicable principles of contract or common law. Miss. Code Ann. §71-7-27(2) (Rev. 2000).
These separate provisions from the Drug and Alcohol Testing of Employees Law raise the question of whether employers subject to the Workers' Compensation Law are still required to have a drug and alcohol testing policy, or whether they have the discretion to implement such a program. Section 71-7-3(1) of the Drug and...