In a Mississippi Workers’ Compensation case, an employer may ask an injured worker to submit to a drug/alcohol test at the time the injury is reported. Is this legal, and does an injured worker have to submit to the test? First, the request is legal. Section 71-3-121 of the MS Code Annotated clearly gives an employer the right to administer the test.
What happens if the test comes back “hot”, or positive for drugs/alcohol? Depending on the employer’s policies and procedures, the employer may be able to fire the worker immediately. In the litigated workers’ comp case, a positive test means a presumption is created in favor of the employer and against the worker. The presumption is that the injury was caused by impairment due to the drugs and alcohol, and the employer has an extra defense to avoid paying for the claim.
What happens if the test is refused? A refusal to submit to drug/alcohol test by an employer creates the same presumption and defense as described in the previous paragraph.
What about prescription meds? If the employer can show from a drug test that a prescription medication was taken contrary to the instructions and warnings, the presumption that the drug use caused the injury is also created for prescriptions.
Does the presumption kill the workers’ comp case? Let’s say a drug test came back positive. It’s not the end of the world and does not immediately cause a loss of the right to workers’ compensation benefits. The positive test will make things a little more difficult, but will not kill the claim. Your attorney will have the right to rebut, or counter, the positive drug/alcohol results with evidence that the person was not impaired by the substance, and the accident would have occurred either way. What type of evidence could be used to rebut the presumption? At Rundlett Law Firm, we would seek testimony from fellow workers that the person didn’t seem impaired at the time. We would have our client take follow up drug tests to show clean results. Or, possibly even use an expert toxicologist or doctor to provide testimony.
Let me know if you have any questions, and have a great week!
“Success is not final, failure is not fatal; it is the courage to continue that counts”