If an employer or a prospective employer in Mississippi has asked you to take a drug test, you’ll want to know your legal rights. 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, this area is regulated by state and local laws.
Mississippi allows employers to require applicants and employees to take drug tests in certain circumstances, as long as the employer follows required rules and procedures
Drug Testing for Mississippi Applicants
Employers may require applicants to take a drug test as part of the employment application process. Applicants must be notified in writing if testing will be required. An employer may refuse to hire an applicant who tests positive or won’t take a drug test.
Drug Testing for Mississippi Employees
Mississippi employers are not required to drug test employees. Drug testing may be required:
- based on reasonable suspicion of drug use
- as part of a routinely scheduled fitness-for-duty medical examination
- as a follow up to a rehabilitation program, or
- if an employee has tested positive within the past 12 months.
Drug testing may also be required on a neutral selection basis.
An employer may not discharge or take any adverse action against an employee on the basis of an initial positive test result that has not been verified by a confirmation test. The employer must inform the employee, in writing, within five days after receiving a positive confirmed test result. The employee has the right to request and receive a copy of the test result report. After receiving notice, the employee has ten working days to explain the positive test result.
Employers must give employees notice 30 days before implementing a testing program.
Legal Claims Arising From Drug Testing
Even though Mississippi law allows employers to drug test in some circumstances, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
- Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. For example, a Mississippi employee may have a legal claim against an employer who fires the employee based on an initial positive test result that has not been verified by a confirmation test.
- Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, 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.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that is allowed or required 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.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes a false positive test result, if the employer knows or should know that the result is in error, and the employer acts maliciously.