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To: Judiciary B
MISSISSIPPI LEGISLATURE REGULAR SESSION 2026
By: Representative Zuber
HOUSE BILL NO. 1638
AN ACT TO BRING FORWARD SECTIONS 71-7-1 THROUGH 71-7-15 AND 1
71-7-19 THROUGH 71-7-33, MISSISSIPPI CODE OF 1972, WHICH AUTHORIZE 2
PUBLIC AND PRIVATE EMPLOYERS TO VOLUNTARILY ELECT TO CONDUCT DRUG 3
AND ALCOHOL TESTING OF EMPLOYEES, FOR PURPOSES OF POSSIBLE 4
AMENDMENT; TO BRING FORWARD SECTION 47-5-196, MISSISSIPPI CODE OF 5
1972, WHICH REQUIRES THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO 6
CONDUCT MANDATORY DRUG TESTING OF ITS EMPLOYEES, FOR PURPOSES OF 7
POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES. 8
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: 9
SECTION 1. Section 71-7-1, Mississippi Code of 1972, is 10
brought forward as follows: 11
71-7-1. As used in this chapter, the following terms shall 12
have the meaning ascribed to them herein unless the context 13
requires otherwise: 14
(a) "Confirmation test" means a drug and alcohol test 15
on a specimen to substantiate the results of a prior drug and 16
alcohol test on the specimen. The confirmation test must use an 17
alternate method of equal or greater sensitivity than that used in 18
the previous drug and alcohol test. 19
(b) "Drug" means an illegal drug, or a prescription or 20
nonprescription medication. 21
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(c) "Alcohol" means ethyl alcohol. 22
(d) "Drug and alcohol test" means a chemical test 23
administered for the purpose of determining the presence or 24
absence of a drug or metabolites in a person's body fluids. 25
(e) "Employee" means any person who supplies a service 26
for remuneration or pursuant to any contract for hire to a private 27
or public employer in this state. 28
(f) "Employee assistance program" means a program 29
provided by an employer offering assessment, short-term counseling 30
and referral services to employees, including drug, alcohol and 31
mental health programs. 32
(g) "Employer" means any individual, organization or 33
government body, subdivision or agency thereof, including 34
partnership, association, trustee, estate, corporation, 35
joint-stock company, insurance company or legal representative, 36
whether domestic or foreign, or the receiver, trustee in 37
bankruptcy, trustee or successor thereof, and any common carrier 38
by mail, motor, water, air or express company doing business in or 39
operating within this state, which has one or more employees 40
within this state, or which has offered or may offer employment to 41
one or more individuals in this state. 42
(h) "Illegal drug" means any substance, other than 43
alcohol, having psychological and/or physiological effects on a 44
human being and that is not a prescription or nonprescription 45
medication, including controlled dangerous substances and 46
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controlled substance analogs or volatile substances which produce 47
the psychological and/or physiological effects of a controlled 48
dangerous substance through deliberate introduction into the body. 49
(i) "Initial test" means an initial drug test to 50
determine the presence or absence of drugs or their metabolites in 51
specimens. 52
(j) "Laboratory" means any laboratory that is currently 53
certified or accredited by the federal Clinical Laboratory 54
Improvement Act, as amended, by the federal Substance Abuse and 55
Mental Health Services Administration, by the College of American 56
Pathologists, or that has been deemed by the State Board of Health 57
to have been certified or accredited by an appropriate federal 58
agency, organization or another state. 59
(k) "Neutral selection basis" means a mechanism for 60
selecting employees for drug tests that: (i) results in an equal 61
probability that any employee from a group of employees subject to 62
the selection mechanism will be selected, and (ii) does not give 63
an employer discretion to waive the selection of any employee 64
selected under the mechanism. 65
(l) "Prescription or nonprescription medication" means 66
a drug prescribed for use by a duly licensed physician, dentist or 67
other medical practitioner licensed to issue prescriptions or a 68
drug that is authorized pursuant to federal or state law for 69
general distribution and use without a prescription in the 70
treatment of human diseases, ailments or injuries. 71
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(m) "Reasonable suspicion drug and alcohol testing" 72
means drug and alcohol testing based on a belief that an employee 73
is using or has used drugs in violation of the employer's policy 74
drawn from specific objective and articulable facts and reasonable 75
inferences drawn from those facts in light of experience, and may 76
be based upon, among other things: 77
(i) Observable phenomena, such as direct 78
observation of drug use and/or the physical symptoms or 79
manifestations of being under the influence of a drug; 80
(ii) Abnormal conduct or erratic behavior while at 81
work, absenteeism, tardiness or deterioration in work performance; 82
(iii) A report of drug use provided by reliable 83
and credible sources and which has been independently 84
corroborated; 85
(iv) Evidence that an individual has tampered with 86
a drug and alcohol test during his employment with the current 87
employer; 88
(v) Information that an employee has caused or 89
contributed to an accident while at work; 90
(vi) Evidence that an employee is involved in the 91
use, possession, sale, solicitation or transfer of drugs while 92
working or while on the employer's premises or operating the 93
employer's vehicle, machinery or equipment. 94
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(n) "Specimen" means a tissue or product of the human 95
body chemically capable of revealing the presence of drugs in the 96
human body. 97
SECTION 2. Section 71-7-3, Mississippi Code of 1972, is 98
brought forward as follows: 99
71-7-3. (1) For the purposes of this chapter, the election 100
of a public or private employer to conduct drug and alcohol 101
testing is voluntary. If an employer elects voluntarily to follow 102
this chapter, the employer must follow all the terms of this 103
chapter without exception. 104
(2) Any employee who may be required by an employer to 105
submit to a drug and alcohol test shall be provided, at least 106
thirty (30) days prior to the implementation of a drug and alcohol 107
testing program, a written policy statement from the employer 108
which contains: 109
(a) A general statement of the employer's policy on 110
employee drug use which shall include identifying both the grounds 111
on which an employee may be required to submit to a drug and 112
alcohol test and the actions the employer may take against an 113
employee on the basis of a positive confirmed drug and alcohol 114
test result, or other violation of the employer's drug use policy; 115
(b) A statement advising the employee of the existence 116
of this chapter; 117
(c) A general statement concerning confidentiality; 118
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(d) Procedures for how employees can confidentially 119
report the use of prescription or nonprescription medications 120
prior to being tested; 121
(e) Circumstances under which drug and alcohol testing 122
may occur, and a description of which positions will be subject to 123
testing on a reasonable suspicion, neutral selection or other 124
basis; 125
(f) The consequences of refusing to submit to a drug 126
and alcohol test; 127
(g) Information on opportunities for assessment and 128
rehabilitation if an employee has a positive confirmed test result 129
and the employer determines that discipline or discharge are not 130
necessary or appropriate; 131
(h) A statement that an employee who receives a 132
positive confirmed drug and alcohol test result may contest the 133
accuracy of that result or explain it; 134
(i) A list of all drugs for which the employer might 135
test. Each drug shall be described by its brand name, common 136
name, or its chemical name; 137
(j) A statement regarding any applicable collective 138
bargaining agreement or contract. 139
(3) An employer shall post the notice in an appropriate and 140
conspicuous location on the employer's premises and copies of the 141
policy shall be made available for inspection during regular 142
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business hours by employees in the employer's personnel office or 143
other suitable locations. 144
(4) The State Board of Health shall develop standard 145
language for those sections of drug and alcohol testing notices 146
described in paragraphs (b), (c) and (d) of subsection (2) of this 147
section. 148
(5) An employer who conducts job applicant drug and alcohol 149
testing shall notify the applicant, in writing, upon application 150
and prior to the collection of the specimen for the drug and 151
alcohol test, that the applicant may be tested for the presence of 152
drugs or their metabolites. 153
(6) An employee or job applicant required to submit to a 154
drug and alcohol test may be requested by an employer to sign a 155
statement indicating that he has read and understands the 156
employer's drug and alcohol testing policy and/or notice. An 157
employee's or job applicant's refusal to sign such a statement 158
shall not invalidate the results of any drug and alcohol test, or 159
bar the employer from administering the drug and alcohol test or 160
from taking action consistent with the terms of an applicable 161
collective bargaining agreement or the employer's drug and alcohol 162
testing policy, or from refusing to hire the job applicant. 163
(7) If the employer is a government employer, the decision 164
of whether to require employees and/or applicants for employment 165
to submit to drug and alcohol tests in accordance with the 166
provisions of this chapter shall be made by the executive head or 167
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governing body of the department, agency, institution or political 168
subdivision authorized to employ. However, in the case of any 169
elected public official of the State of Mississippi or of any 170
department, agency, institution or political subdivision thereof, 171
the decision of whether any person who such official is authorized 172
to employ, or any person who any governing board, commission or 173
body upon which or as a member of which such public official has 174
been elected by the people to serve is authorized to employ, shall 175
be required to submit to a drug and alcohol test in accordance 176
with the provisions of this chapter shall be made: 177
(a) By the governing board, commission or body upon 178
which or as a member of which such public official has been 179
elected to serve; or 180
(b) If the elected public official has not been elected 181
to serve upon or as a member of a governing board, commission or 182
body, by the elected official himself. 183
SECTION 3. Section 71-7-5, Mississippi Code of 1972, is 184
brought forward as follows: 185
71-7-5. (1) Except as otherwise provided in Section 186
71-7-27, all drug and alcohol testing conducted by employers shall 187
be in conformity with the standards established in this section, 188
other applicable provisions of this chapter, and all applicable 189
regulations promulgated pursuant to this chapter. 190
(2) An employer is authorized to conduct the following types 191
of drug and alcohol tests: 192
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(a) Employers may require job applicants to submit to a 193
drug and alcohol test as a condition of the employment application 194
and may use a refusal to submit to a test or positive confirmed 195
test result as a basis for refusal to hire. 196
(b) An employer may require all employees to submit to 197
reasonable suspicion drug and alcohol testing. There is created a 198
rebuttable presumption that the employer had reasonable suspicion 199
to test for drugs if the specimen provided by the employee tested 200
positive for drugs in a confirmatory drug test. 201
(c) An employer may require all employees to submit to 202
neutral selection drug and alcohol testing pursuant to Section 203
71-7-9. 204
(d) An employer may administer drug and alcohol testing 205
or require that the employee submit himself to drug and alcohol 206
testing as provided under Section 71-3-121 in the event that the 207
employee sustains an injury at work or asserts a work-related 208
injury. 209
SECTION 4. Section 71-7-7, Mississippi Code of 1972, is 210
brought forward as follows: 211
71-7-7. (1) Subject to the provisions of this chapter and 212
any applicable collective bargaining agreement or contract, any 213
nongovernment employer may require as a condition of employment or 214
as a condition of continued employment that employees submit to 215
neutral selection drug and alcohol testing. 216
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(2) Subject to the provisions of this chapter, any 217
government employer may require as a condition of employment or as 218
a condition of continued employment that employees submit to 219
neutral selection drug and alcohol testing; provided, however, 220
that the employees tested and the criteria for such testing shall 221
be determined by the government employer, based upon the extent to 222
which the government employer: 223
(a) Is engaged in law enforcement; 224
(b) Has national or state security responsibilities; 225
(c) Has drug interdiction responsibilities; or 226
(d) Has positions which: 227
(i) Authorize employees to carry firearms; 228
(ii) Give employees access to sensitive 229
information; 230
(iii) Authorize employees to engage in law 231
enforcement; 232
(iv) Require employees, as a condition of 233
employment, to obtain a security clearance; or 234
(v) Require employees to engage in activities 235
affecting public health or safety. 236
(3) An employer may require an employee to submit to a drug 237
and alcohol test if the test is conducted as part of a routinely 238
scheduled employee fitness for duty medical examination that is 239
part of the employer's established policy and/or which is 240
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scheduled routinely for all members of an employment 241
classification or group. 242
(4) An employer may require an employee to submit to neutral 243
selection or routine drug and alcohol tests if the employee in the 244
course of his employment enters a drug abuse rehabilitation 245
program, and as a follow-up to such rehabilitation, or if previous 246
drug and alcohol testing of the employee within a twelve-month 247
period resulted in a positive confirmed test result, or the drug 248
and alcohol test is conducted in accordance with the terms of an 249
applicable collective bargaining agreement or contract that 250
permits the employer to administer drug and alcohol tests on a 251
neutral selection or routine basis. 252
(5) If an employee is participating in drug abuse 253
rehabilitation, drug and alcohol testing may be conducted by the 254
rehabilitation provider as deemed appropriate by the provider. 255
SECTION 5. Section 71-7-9, Mississippi Code of 1972, is 256
brought forward as follows: 257
71-7-9. (1) The collection of specimens shall be performed 258
under reasonable and sanitary conditions. Individual dignity 259
shall be preserved to the extent practicable. 260
(2) Specimens shall be collected in a manner reasonably 261
calculated to prevent substitution of specimens and interference 262
with the collection or testing of specimens. 263
(3) Specimen collection shall be documented, and the 264
documentation procedures shall include: 265
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(a) Labeling of specimen containers so as to reasonably 266
preclude the likelihood of erroneous identification of test 267
results; and 268
(b) An opportunity for the employee or applicant to 269
provide any information that he considers relevant to the test, 270
including identification of currently or recently used 271
prescription or nonprescription drugs, or other relevant medical 272
information. The provision of this information shall not preclude 273
the administration of the drug and alcohol test, but shall be 274
taken into account in interpreting any positive confirmed results. 275
(4) Specimen collection, storage and transportation to the 276
testing site will be performed in a manner which will reasonably 277
preclude specimen contamination or adulteration, and specimen 278
testing for drugs shall conform to scientifically accepted 279
analytical methods and procedures. 280
(5) Each confirmation test conducted under this chapter, not 281
including the taking or collecting of a specimen to be tested, 282
shall be conducted by a laboratory. 283
(6) A specimen for a drug and alcohol test may be taken or 284
collected by any of the following persons: 285
(a) A physician, a registered nurse or a licensed 286
practical nurse; 287
(b) A qualified person employed by a laboratory; or 288
(c) Any person deemed qualified by the State Board of 289
Health. 290
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(7) A person who collects or takes a specimen for a drug and 291
alcohol test conducted pursuant to this chapter shall collect an 292
amount sufficient for at least two (2) drug and alcohol tests as 293
defined by federal statutes and regulations. 294
(8) Any drug and alcohol testing conducted or requested by 295
an employer shall occur during or immediately after the regular 296
work period of current employees, and shall be deemed to be 297
performed during work time for purposes of determining 298
compensation and benefits for current employees. 299
(9) Every specimen that produces a positive confirmed result 300
shall be preserved in a frozen state by the laboratory that 301
conducts the confirmation test for a period of ninety (90) days 302
from the time the results of the positive confirmed test are 303
mailed or otherwise delivered to the employer. During this 304
period, the employee who has provided the specimen shall be 305
permitted by the employer to have a portion of the specimen 306
retested, at the employee's expense, at a laboratory chosen by the 307
employee. The laboratory that has performed the test for the 308
employer shall be responsible for the transfer of the portion of 309
the specimen to be retested, and for the integrity of the chain of 310
custody during such transfer. 311
(10) Within five (5) working days after receipt of a 312
positive confirmed test result report from the laboratory that 313
conducted the test, an employer shall, in writing, inform an 314
employee of such positive test result and inform the employee in 315
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writing of the consequences of such a report and the options 316
available to him. 317
(11) An employee may request and receive from the employer a 318
copy of the test result report. 319
(12) Within ten (10) working days after receiving notice of 320
a positive confirmed test result, the employee may submit 321
information to an employer explaining the test results, and why 322
the results do not constitute a violation of the employer's 323
policy. If an employee's explanation of the positive test results 324
is not satisfactory to the employer, a written explanation 325
submitted by the employer as to why the employee's explanation is 326
unsatisfactory, along with the report of positive results, shall 327
be made a part of the employee's medical and personnel records. 328
(13) Except as otherwise provided in Section 71-7-13(10), an 329
employer may not discharge, discipline, refuse to hire, 330
discriminate against, or request or require rehabilitation of an 331
employee on the basis of a positive test result that has not been 332
verified by a confirmatory test. 333
(14) An employer may not discharge, discipline, discriminate 334
against or request or require rehabilitation of an employee on the 335
basis of medical history information revealed to the employer 336
pursuant to this chapter unless the employee had an affirmative 337
obligation to provide such information before, upon or after hire. 338
(15) An employer who performs on-site drug and alcohol tests 339
or specimen collection shall establish chain-of-custody procedures 340
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to ensure proper record keeping, handling, labeling and 341
identification of all specimens to be tested. 342
(16) The employer shall pay the costs of all drug and 343
alcohol tests to which he requires, or requests, an employee or 344
job applicant to submit. The employee or job applicant shall pay 345
the costs of any additional drug and alcohol tests requested by 346
the employee or job applicant. 347
SECTION 6. Section 71-7-11, Mississippi Code of 1972, is 348
brought forward as follows: 349
71-7-11. Only laboratories shall conduct confirmation drug 350
and alcohol tests. All confirmation tests shall use an alternate 351
method of equal or greater sensitivity than that used on the 352
initial drug and alcohol test. If an initial drug and alcohol 353
test is negative, there shall be no confirmation drug and alcohol 354
test. 355
SECTION 7. Section 71-7-13, Mississippi Code of 1972, is 356
brought forward as follows: 357
71-7-13. (1) An employee or job applicant whose drug and 358
alcohol test result is confirmed as positive in accordance with 359
the provisions of this chapter shall not, by virtue of the result 360
alone, be defined as a person with a "handicap." 361
(2) An employer who discharges or disciplines an employee on 362
the basis of a positive confirmed drug and alcohol test in 363
accordance with this chapter shall be considered to have 364
discharged or disciplined the employee for cause. 365
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(3) An employee discharged on the basis of a confirmed 366
positive drug and alcohol test in accordance with this chapter 367
shall be considered to have been discharged for willful 368
misconduct. 369
(4) A physician-patient relationship is not created between 370
an employee or job applicant, and an employer or any person 371
performing or evaluating the drug and alcohol test, solely by the 372
establishment or implementation of a drug and alcohol testing 373
program. 374
(5) This chapter does not prevent an employer from 375
establishing reasonable work rules related to employee possession, 376
use, sale or solicitation of drugs, including convictions for 377
drug-related offenses, and taking action based upon a violation of 378
any of those rules. 379
(6) This chapter shall not be retroactive and shall not 380
abrogate any right an employer may have to conduct drug and 381
alcohol tests prior to July 1, 1991. A drug and alcohol test 382
conducted by an employer before July 1, 1991, shall not be subject 383
to this chapter. 384
(7) If an employee refuses to submit to drug and alcohol 385
testing administered in accordance with this chapter, the employer 386
shall not be barred from discharging, or disciplining, or 387
referring the employee to a drug abuse assessment, treatment and 388
rehabilitation program at a site certified by the Department of 389
Mental Health. 390
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(8) An employer, in addition to any appropriate personnel 391
actions, may refer any employee found to have violated the 392
employer's policy on drug use to an employee assistance program 393
for assessment, counseling and referral for treatment or 394
rehabilitation as appropriate. Such treatment or rehabilitation 395
shall be at a site certified by the Department of Mental Health. 396
(9) This chapter does not prohibit an employer from 397
conducting medical screening or other tests required by any 398
statute, rule or regulation for the purpose of monitoring exposure 399
of employees to toxic or other unhealthy substances in the 400
workplace or in the performance of job responsibilities. Such 401
screenings or tests shall be limited to the specific substances 402
expressly identified in the applicable statute, rule or 403
regulation, unless prior written consent of the employee is 404
obtained for other tests. 405
(10) An employer may temporarily suspend or transfer an 406
employee to another position after obtaining the results of a 407
positive on-site initial test. An employer may discharge an 408
employee after obtaining the results of a positive confirmed test. 409
(11) Nothing in this chapter shall affect any right of an 410
employer to terminate the employment of any person for reasons not 411
related to a drug and alcohol testing program implemented pursuant 412
to the provisions of this chapter. 413
SECTION 8. Section 71-7-15, Mississippi Code of 1972, is 414
brought forward as follows: 415
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71-7-15. (1) All information, interviews, reports, 416
statements, memoranda and test results, written or otherwise, 417
received by the employer through its drug and alcohol testing 418
program are confidential communications and may not be used or 419
received in evidence, obtained in discovery, or disclosed in any 420
public or private proceedings, except in accordance with this 421
chapter. 422
(2) Any information obtained by an employer pursuant to this 423
chapter shall be the property of the employer. 424
(3) An employer shall not release to any person other than 425
the employee or job applicant, or employer medical, supervisory or 426
other personnel, as designated by the employer on a need to know 427
basis, information related to drug and alcohol test results 428
unless: 429
(a) The employee or job applicant has expressly, in 430
writing, granted permission for the employer to release such 431
information; 432
(b) It is necessary to introduce a positive confirmed 433
test result into an arbitration proceeding pursuant to a 434
collective bargaining agreement, an administrative hearing under 435
applicable state or local law, or a judicial proceeding, provided 436
that information is relevant to the hearing or proceeding, or the 437
information must be disclosed to a federal or state agency or 438
other unit of the state or United States government as required 439
under law, regulation or order, or in accordance with compliance 440
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requirements of a state or federal government contract, or 441
disclosed to a drug abuse rehabilitation program for the purpose 442
of evaluation or treatment of an employee; or 443
(c) There is a risk to public health or safety that can 444
be minimized or prevented by the release of such information; 445
provided, however, that unless such risk is immediate, a court 446
order permitting the release shall be obtained prior to the 447
release of the information. 448
(4) The confidentiality provisions provided for in this 449
section shall not apply to other parts of an employee's or job 450
applicant's personnel or medical files. 451
(5) If an employee refuses to sign a written consent form 452
for release of information to persons as permitted in this 453
chapter, the employer shall not be barred from discharging or 454
disciplining the employee. 455
SECTION 9. Section 71-7-19, Mississippi Code of 1972, is 456
brought forward as follows: 457
71-7-19. (1) A laboratory shall disclose to the employer a 458
written test result report within five (5) working days after the 459
test. 460
(2) All laboratory reports of a test result shall, at a 461
minimum, state: 462
(a) The name and address of the laboratory that 463
performed the test and the positive identification of the person 464
tested; 465
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(b) Any positive confirmed drug and alcohol test 466
results on a specimen which tested positive on an initial test, or 467
a negative drug and alcohol test result on a specimen; provided, 468
however, that reports should not make reference to initial or 469
confirmatory tests when reporting positive or negative results; 470
(c) A list of the drugs tested for; 471
(d) The type of tests conducted for both initial and 472
confirmation tests and the cutoff levels of the tests; and 473
(e) The report shall not disclose the presence or 474
absence of any physical or mental condition or of any drug other 475
than the specific drug and its metabolites that an employer 476
requests to be identified. 477
SECTION 10. Section 71-7-21, Mississippi Code of 1972, is 478
brought forward as follows: 479
71-7-21. The State Board of Health shall adopt rules 480
concerning: 481
(a) Standards for drug and alcohol testing laboratory 482
certification, suspension and revocation of certification; 483
(b) Body specimens that are appropriate for drug and 484
alcohol testing; 485
(c) Methods of analysis and procedures to ensure 486
reliable drug and alcohol testing results, including standards for 487
initial tests and confirmatory tests; 488
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(d) Guidelines on how to establish cutoff detection 489
levels for drugs or their metabolites for the purposes of 490
determining a positive test result; 491
(e) Chain-of-custody procedures to ensure proper 492
identification, labeling and handling of specimens being tested; 493
and 494
(f) Retention and storage procedures to ensure reliable 495
results on confirmation tests and retests. 496
SECTION 11. Section 71-7-23, Mississippi Code of 1972, is 497
brought forward as follows: 498
71-7-23. (1) A person alleging a violation of this chapter 499
may bring an action for injunction relief or damages, or both. 500
(2) For the purposes of this chapter, damages shall be 501
limited to the recovery of compensatory damages directly resulting 502
from injury or loss caused by each violation of this chapter. 503
(3) A person or collective bargaining agent may bring an 504
action under this section only after first exhausting all 505
applicable grievance procedures and arbitration proceeding 506
requirements under a collective bargaining agreement; provided, 507
however, that the person's right to bring an action under this 508
section shall not be affected by a decision of a collective 509
bargaining agent not to pursue a grievance. 510
(4) If a violation of this chapter is found and damages are 511
awarded, reasonable attorney fees may be awarded to the person if 512
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the court or arbitrator finds that an employer has knowingly or 513
recklessly violated this chapter. 514
SECTION 12. Section 71-7-25, Mississippi Code of 1972, is 515
brought forward as follows: 516
71-7-25. (1) Upon an alleged violation of the provisions of 517
this chapter, a person must institute a civil action in a court of 518
competent jurisdiction within one (1) year of the alleged 519
violation or the exhaustion of any internal administrative 520
remedies available to the person, or be barred from obtaining the 521
relief provided for in subsection (2) of this section. 522
(2) Relief for violations of this chapter shall be limited 523
to: 524
(a) An injunction to restrain the continued violation 525
of this chapter; 526
(b) The reinstatement of the person to the same 527
position held before the unlawful drug and alcohol testing, 528
disciplinary action or discharge, or to an equivalent position; 529
(c) The reinstatement of full employee benefits and 530
seniority rights; 531
(d) Compensation for lost wages, benefits and other 532
remuneration to which the person would have been entitled but for 533
a violation of this chapter; 534
(e) Payment by the employer of reasonable costs. 535
(3) Any employer who complies with the provisions of this 536
chapter shall be without liability from all civil actions arising 537
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from any drug and alcohol testing programs or procedures performed 538
in compliance with this chapter. 539
(4) Pursuant to any claim alleging a violation of this 540
chapter, including a claim under this chapter in which it is 541
alleged that an employer's action with respect to a person was 542
based on an incorrect test result, there shall be a rebuttable 543
presumption that the test result was valid if the employer 544
complied with the provisions of this chapter. 545
(5) No cause of action for defamation of character, libel, 546
slander or damage to reputation arises in favor of any person 547
against an employer who has established a program of drug and 548
alcohol testing in accordance with this chapter, unless: 549
(a) Information regarded as confidential is released 550
not in accordance with an information release form signed by the 551
person or otherwise not in accordance with this chapter; 552
(b) The information disclosed was based on an incorrect 553
test result; 554
(c) The incorrect test result was disclosed with 555
malice; and 556
(d) All other elements of an action for defamation of 557
character, libel, slander or damage to reputation as established 558
by statute or common law, are satisfied. 559
(6) No cause of action shall arise in favor of any person 560
based upon the failure of an employer to establish a program or 561
policy for drug and alcohol testing. 562
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SECTION 13. Section 71-7-27, Mississippi Code of 1972, is 563
brought forward as follows: 564
71-7-27. (1) A private employer may affirmatively elect to 565
conduct an employee drug and alcohol testing policy or program 566
pursuant to the provisions of this chapter. Such election shall 567
be made by including in the written statement of the employer's 568
policy on drug use provided for in Section 71-7-3(1), and in the 569
job applicant notification provided for in Section 71-7-3(4), a 570
specific statement that the employer's policy is being implemented 571
pursuant to the provisions of this chapter. In the event a 572
private employer makes such an election, the private employer and 573
its employees and job applicants shall have the rights and 574
obligations available to a private employer and its employees and 575
job applicants under this chapter. A private employer who has 576
made such an election may rescind such election by posting a 577
written and dated notice in an appropriate and conspicuous 578
location on the employer's premises, which notice shall state that 579
the employer's employee drug and alcohol testing policy or program 580
will no longer be conducted pursuant to this chapter. As to 581
employees, the rescission of such election shall become effective 582
no earlier than ten (10) working days after the date of the posted 583
notice. As to job applicants, an employer may rescind such 584
election without notice to such job applicant. 585
(2) Any private employer who does not make such an election 586
or who rescinds an election previously made will be deemed to not 587
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be conducting an employee drug and alcohol testing policy or 588
program pursuant to the provisions of this chapter, and in that 589
event the rights and obligations of the employer and its employees 590
and job applicants will not in any way be subject to or affected 591
by the provisions of this chapter, but will instead be governed by 592
applicable principles of contract or common law. 593
SECTION 14. Section 71-7-29, Mississippi Code of 1972, is 594
brought forward as follows: 595
71-7-29. This chapter shall not apply to any employer who is 596
subject to federal law or federal regulations governing the 597
administering of drug and alcohol tests to any of its employees or 598
applicants for employment. 599
SECTION 15. Section 71-7-31, Mississippi Code of 1972, is 600
brought forward as follows: 601
71-7-31. A private employer shall not, by virtue of 602
establishing or implementing a program for drug and alcohol 603
testing in accordance with this chapter or otherwise, be deemed to 604
be an agent or instrument of the State of Mississippi or any body, 605
department, agency, institution or political subdivision thereof. 606
SECTION 16. Section 71-7-33, Mississippi Code of 1972, is 607
brought forward as follows: 608
71-7-33. It shall be unlawful for any public or private 609
employer to require as a condition of employment that any employee 610
or applicant for employment abstain from smoking or using tobacco 611
products during nonworking hours, provided that the individual 612
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ST: Drug and alcohol testing; bring forward
statutes addressing government employees.
complies with applicable laws or policies regulating smoking on 613
the premises of the employer during working hours. 614
SECTION 17. Section 47-5-196, Mississippi Code of 1972, is 615
brought forward as follows: 616
47-5-196. The Department of Corrections shall develop and 617
implement a drug testing program for its employees no later than 618
July 1, 1997. The department shall develop a written policy for 619
alcohol and drug testing of employees to deter the use of alcohol 620
and drugs at its facilities and to ensure an alcohol and drug free 621
environment at correctional facilities. Participation by 622
employees is mandatory and the tests may be conducted in a random 623
manner. 624
SECTION 18. This act shall take effect and be in force from 625
and after July 1, 2026. 626