MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Insurance; Judiciary A
By: Representatives Bounds, Formby, Byrd, Carpenter, Chism, Ellington, Gipson, Monsour, Moore, Nicholson, Palazzo, Pigott, Staples
AN ACT TO AMEND SECTION 71-3-121, MISSISSIPPI CODE OF 1972, TO REVISE THE CRITERIA FOR DRUG AND ALCOHOL TESTING UNDER WORKERS' COMPENSATION; TO AMEND SECTIONS 71-3-7 AND 71-7-5, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 71-3-121, Mississippi Code of 1972, is amended as follows:
71-3-121. The Commissioner of Insurance shall promulgate * * * rules and regulations * * * to require each insurer to establish a safety program for the health and benefit of the employees of the insured employer. The safety program shall include language to explain the rights of workers under the Workers' Compensation Law. The 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., 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. Under the policy, whether or not the employer has * * * cause to suspect that an employee's injury was occasioned * * * by the intoxication of the employee or * * * the illegal use of any controlled substances by the employee, the employer may require the employee to submit to a test for the presence of any controlled substances or alcohol in his system.
The results of the employer-administered tests shall be considered admissible evidence * * * on the issue of causation in the determination of intoxication of an employee or the illegal use of any controlled substance by an employee at the time of the injury for workers' compensation purposes under Section 71-3-7.
In order to support a finding of intoxication or the illegal use of any controlled substances, the employer must prove the employee's use of the alcohol or controlled substances only by a preponderance of the evidence.
Notwithstanding any language or statute to the contrary, once the employer has met the burden of proving intoxication of the employee or the illegal use of any controlled substances by the employee at the time of the injury, it shall be presumed that the injury was caused by that intoxication or illegal use. The burden of proof then shall be placed upon the employee to prove that the intoxication or illegal use of any controlled substance was not a contributing cause of the accident in order to defeat the intoxication or controlled substance defense of the employer as provided under Section 71-3-7.
SECTION 2. Section 71-3-7, Mississippi Code of 1972, is amended as follows:
71-3-7. Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease. An occupational disease shall be deemed to arise out of and in the course of employment when there is evidence that there is a direct causal connection between the work performed and the occupational disease.
Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease, or lesion contributed to the production of the results following the injury.
(a) Apportionment shall not be applied until the claimant has reached maximum medical recovery.
(b) The employer or carrier does not have the power to determine the date of maximum medical recovery or percentage of apportionment. This must be done by the attorney-referee, subject to review by the commission as the ultimate finder of fact.
(c) After the date the claimant reaches maximum medical recovery, weekly compensation benefits and maximum recovery shall be reduced by that proportion which the preexisting physical handicap, disease, or lesion contributes to the results following injury.
(d) If maximum medical recovery has occurred before the hearing and order of the attorney-referee, credit for excess payments shall be allowed in future payments. Such allowances and method of accomplishment of the same shall be determined by the attorney-referee, subject to review by the commission. However, no actual repayment of such excess shall be made to the employer or carrier.
No compensation shall be payable if the intoxication of the employee or illegal use of any controlled substance by the employee was a proximate cause of the injury, or if it was the willful intention of the employee to injure or kill himself or another.
Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.
In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.
SECTION 3. Section 71-7-5, Mississippi Code of 1972, is amended as follows:
71-7-5. (1) Except as otherwise provided in Section 71-7-27, all drug and alcohol testing conducted by employers shall be in conformity with the standards established in this section, other applicable provisions of this chapter, and all applicable regulations promulgated pursuant to this chapter.
(2) An employer is authorized to conduct the following types of drug and alcohol tests:
(a) Employers may require job applicants to submit to a drug and alcohol test as a condition of the employment application and may use a refusal to submit to a test or positive confirmed test result as a basis for refusal to hire.
(b) An employer may require all employees to submit to reasonable suspicion drug and alcohol testing. There is created a rebuttable presumption that the employer had reasonable suspicion to test for drugs if the specimen provided by the employee tested positive for drugs in a confirmatory drug test.
(c) An employer may require all employees to submit to neutral selection drug and alcohol testing pursuant to Section 71-7-9.
(d) Following any work-related injury, an employer may require the injured employee to submit to a drug and alcohol test whether or not the employer has cause to believe that the employee was intoxicated or illegally using any controlled substances.
SECTION 4. This act shall take effect and be in force from and after July 1, 2010.