As indicated in an earlier post, the repeal of federal drug testing regulations put in jeopardy any further drug testing of unemployment claimants until new congressional legislation is enacted.
A Bloomberg article by Josh Eidelson confirms that observation:
The effort backfired. Because the 2012 law let states test people suited for jobs specified by federal regulations, now that those regulations have been scrapped, there are no jobs for which states are able to test for drugs. Before Congress revoked Obama’s rules, states could have tested aspiring pipeline operators and commercial drivers; now they can’t.
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Jeffrey Lubbers, a law professor at American University and special counsel for the Administrative Conference of the United States, says if he were the Labor Department’s lawyer, he would warn against attempting any new drug testing regulation without Congress passing a law first. “They’d be doing it under a cloud of uncertainty,” Lubbers says. “The irony of it is, now that they’ve disapproved this law, they’re in a worse position than they were before.”
As noted in the previous post, voluntary testing of job applicants by employers can still occur, as that testing is being done by employers of job applicants (and so is not Department testing of unemployment claimants). But, employers have no reason to bring the Department into the loop of applicant drug testing and to make themselves a party to litigation which does not really involve them.