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Drug Testing for Unemployment: What You Need to Know

By Christopher Coble, Esq. on March 21, 2017 | Last updated on March 21, 2019

Last week, Congress cleared the way for states to start drug testing people applying for unemployment benefits. A new measure, expected to be enacted by President Trump, would repeal Obama administration guidance from the Department of Labor which limited the kinds of unemployment benefits for which states could drug test applicants.

So what was the old rule? And how will the new rules work?

The Old Rule

Previously, the Labor Department only allowed states to test applicants for unemployment benefits in industries that require drug testing for employment. So states were prohibited from drug testing people claiming unemployment benefits unless it was in an industry like aviation, trucking, law enforcement or similar lines of work that already utilized routine drug testing. Without this limitation, states could presumably drug test any applicant for unemployment benefits, regardless of industry.

If Trump signs the resolution into law as expected it, the drug-testing rule will be the eighth Obama-era regulation Congress will have killed since the election. Republican lawmakers, already opposed to federal regulations enacted by the previous administration, claim expanding drug testing will save money -- by removing drug users from government benefits rolls will reduce overall spending on those benefits. But that might not always be the case. Recent studies reveal that states may have spent millions on testing welfare applicants, but the results of those tests found that applicants actually test positive for drug use at a lower rate than the general population.

The New Rule

While removal of the regulation should clear the way for expanded unemployment drug testing programs, some are skeptical it will work out that way. As Politico notes:

Under the 2012 law that directed the Labor Department to create the rule, it's not clear that states will have the authority to drug-test workers (except those who lost jobs for drug-related reasons) from any industries until there's a new rule or a new law in place.

In order to repeal this regulation and others, the Republican-controlled Congress utilized the Congressional Review Act, which allows lawmakers to undo executive-branch regulations through a resolution of disapproval with just a simple majority in both the House and Senate. The only catch is that the CRA forbids the executive branch from developing similar rules to replace them, and passing replacement legislation would presumably require 60 votes in the Senate to overcome a filibuster.

Therefore we may not know what new unemployment drug-tested regimes will look like any time soon.

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