The Trump Administration is getting ready to issue a final regulation allowing states to drug test more applicants for unemployment benefits—and to deny benefits to applicants who test positive. (You can read the proposed regulation here; the final version hasn’t been released yet but the Office of Management and Budget is currently reviewing it, according to news reports.)
This rule has a complicated history. In 2012, President Obama signed the Middle Class Tax Relief and Job Creation Act into law. Primarily, the law extended emergency unemployment benefits and cut payroll taxes. However, the law also allowed states to require drug testing of applicants for unemployment benefits if:
- an employer fired the unemployment applicant for drug use, or
- the only suitable work available to the applicant is in an occupation that regularly conducts drug testing.
Lawmakers have been disputing the second category ever since. The Labor Department had to decide which occupations “regularly conduct” drug testing. Under the Obama Administration, the list of occupations was a short one. It included only jobs requiring employees to carry a firearm and jobs for which federal law required drug testing, such as operating a commercial vehicle or serving on a flight crew. (You can read the history of the regulation in the preamble to the proposed regulation.)
Once President Trump took office, the Republican Congress passed a joint resolution disapproving of the drug-testing regulation. President Trump signed the resolution, which meant the regulation could not go into effect. But that also meant there was no regulation from the Labor Department determining which occupations regularly conduct drug testing—and, therefore, which unemployment benefit applicants states could drug test.
How the New Unemployment Rule Opens the Door to More Drug Tests
That’s where the new proposed rule comes in: It defines the occupations that regularly conduct drug testing more broadly. Under the new rule, states can require benefit applicants to take a drug test if employers in that occupation conduct drug tests as a standard condition of getting or keeping a job. Note that the proposed rule doesn’t say all employers in that field must drug test. A state has to have only some factual basis — like a labor market survey or a report from a trade organization — to decide that drug testing is a standard practice in that industry, even if it’s not legally required. After the state makes this determination about your type of work, then it can require you to pass a drug test to get unemployment benefits.
No matter where you stand on drug testing, it’s not hard to see the logic of the old rule. States ask folks collecting unemployment to look for suitable work and to be available to start work as soon as they find a job. If your only suitable work requires drug testing, and you can’t pass a drug test, then it could be argued that you aren’t available to take a job. But under the new rule, states could require drug tests even if only some employers in your field test for drugs, while others choose not to.
What will this change mean for people who have to apply for unemployment benefits? It’s hard to say for sure. The proposed rule says only that states may adopt these drug-testing provisions, not that they have to. However, given how aggressive some states have been lately in cutting benefits and limiting eligibility, it wouldn’t be a surprise to see new state laws requiring drug testing.
To find out what you have to do to get and keep unemployment benefits in your state, see Legal Consumer’s unemployment benefits learning center.