On Trump DOL’s Final Rule Allowing for Drug Testing for Unemployment Benefits

Following is a statement by Michele Evermore, senior researcher and policy analyst with the National Employment Law Project:

“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.

This final rule represents a not-so-subtle attack on the character of unemployed Americans.

“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Labor crafted a regulation that closely adhered to that language, but upset with the bargain it struck, Congress then repealed this regulation, arguing that in spite of the clear language in the MCTRA, states should be allowed to drug test in broader circumstances.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.

Drug testing is 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.”

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