These new regulations differ from the prior federal regulations in that they grant states much more leeway in determining occupations for drug testing. States can decide to test applicants for unemployment benefits where:
- state law requires employees in that occupation to be tested, or
- the state has a “factual basis” for concluding that employers are drug testing applicants or employees in that occupation.
As documented in the comments to this regulation, there are numerous problems to this new testing, ranging from legal (no new law has been passed since the previous regulation was voted down) to economic (the testing will cost more than any possible savings in unemployment benefits) to just plain stupid (one more hurdle for obtaining unemployment benefits is being created when unemployment benefits are already at record lows in part because of the obstacles already in place for such claims).
NELP on the Trump DOL Final Rule Allowing for Drug Testing for Unemployment Benefits
Following is a statement by Michele Evermore, Senior Researcher and Policy Analyst at the National Employment Law Project (NELP):
“Today, the Trump Administration released a final rule to allow expanded drug testing for unemployment insurance applicants. The Administration clearly overstepped its authority. We urge states not to act to pass legislation based on this regulation for several reasons: it is a costly solution in search of a problem; it violates Fourth Amendment protections against suspicion-less search; it unfairly stigmatizes receipt of an earned benefit; and it sets lawmakers up for the perception that the massive drug testing industry is influencing policy in a way that hurts state coffers, unemployment recipients, and the larger economy in case of an economic downturn.
“As part of a bipartisan compromise to pass the Middle Class Tax Relief and Job Creation Act of 2012 (MCTRA), Congress agreed to allow states to test unemployment insurance claimants for drugs under two narrow circumstances: if a worker was discharged for use of controlled substances, or when a worker is only available for work in professions that regularly conduct drug testing. The Obama Department of Labor crafted a regulation that closely adhered to that language, but upset with the bargain it struck, Congress then repealed this regulation, arguing that in spite of the clear language in the MCTRA, states should be allowed to drug test in broader circumstances.
“Not only does this rule exceed the authority Congress allowed in MCTRA, it may violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. The final rule gives states broad authority to determine which jobs “regularly drug test.” Subjecting broad categories of workers, who do not work in occupations that the government has a particular safety or other interest in keeping drug-free, to invasive testing amounts to unconstitutional searches. Applying for earned benefits does not provide grounds to reasonably suspect a person of drug use. Indeed, when states such as Michigan and Florida tried to impose mandatory suspicion-less drug testing on all TANF applicants and recipients, federal courts intervened to stop them, finding such testing unconstitutional.
“States are experiencing record low administrative funding based on historically low unemployment levels. Federal law prohibits assigning this cost to claimants, so states would have to absorb the full cost of drug testing thousands of unemployed workers. Hopefully, states will see this as the costly and unnecessary burden that it is.
“Finally, this final rule represents a not-so-subtle attack on the character of unemployed Americans. This intrusion into the privacy of workers who were unlucky enough to lose their job seems rooted in a blanket assumption that they themselves are to blame. It could also discourage workers from completing applications – some unemployed workers may not be able to travel to a testing center to undergo an invasive test to receive benefits. Drug testing is simply a lazy way of blaming the victims of larger economic trends or corporate practices such as downsizing, outsourcing, and offshoring.
“Unemployment insurance is an important economic tool to help workers, their families, and their communities deal with involuntary job loss. NELP will continue to lead the fight to stop this expensive and ill-conceived effort to erode this key protection for people who are involuntarily unemployed and for the broader economy, if states attempt to implement it.”
Wisconsin was one of three states to implement drug testing in anticipation of these federal rules. It will be interesting to say the least how the Evers administration reacts to this drug testing push in light of the regulations and testing Wisconsin has already put into place in anticipation of this federal regulation.
NOTE: The Department of Workforce Development has reported to the Unemployment Insurance Advisory Council this summer 2019 that: of the voluntary employer reporting of failed drug testing currently available in Wisconsin, not one, single case has been reported. It seems that drug testing really is NOT that important.
And, one more issue of note with this new testing: marijuana. The new regulations indicate that the testing is for controlled substances that are banned federally. So, in states that have legalized marijuana to some extent — Michigan for instance — employees will lose unemployment benefits for testing positive for marijuana despite recreational or prescription use of marijuana being allowed in that state. As Wisconsin has done nothing to legalize marijuana, this state will not have to deal with that problem with these new regulations.