Federal drug testing is trying for a comeback

The current administration is trying to bring back drug testing. As of Oct. 24th, the Office of Management and Budget has approved new, proposed regulations:

As indicated here, these proposed regulations are strangely NOT economically significant, do NOT affect small entities, and have NO federalism impacts (i.e., state sovereignty remains intact). The whole point of drug testing the unemployed was to reduce the “terrible” effects of drug use on workplace productivity and safety, that this federal drug testing requirement would empower small businesses to take up this testing and thereby get a drug-free workforce at much lower costs, and that the regulation would allow states the “freedom” to implement specific drug-testing requirements. Essentially, this conclusion of NO effect on these issues is proclaiming that drug-testing the unemployed is of no importance, financially or otherwise.

The new, proposed regulations should appear in the Federal Register in the next few weeks. Only then will we know what the substance of these new requirements are.

As I noted previously here and here, there are serious problems with any new drug testing regulations given how Congress nixed the prior regulations via the Congressional Review Act. Under that law, new regulations are verboten if they are in “substantially the same form” as the disapproved regulations unless they are specifically authorized by a subsequent federal law.

In other words, these new, proposed regulations MUST be substantially different from the prior drug-testing regulations, as Congress has passed no law authorizing new regulations.