The Trump administration wants to encourage states to conduct drug tests for people seeking unemployment insurance — a practice labor and drug policy experts largely agree is costly for states, shames people who need financial assistance, and does nothing to actually help people with substance use disorders.
The Labor Department finished seeking public comments this month on a rule that gives states more flexibility, allowing them to move forward with legislation to require drug testing for “a far larger group of [unemployment compensation] applicants than the previous Rule permitted.” The department said the “flexibility is intended to respect the diversity of States’ economies and the different roles played by employment drug testing in those economies.”
Michele Evermore, senior researcher and policy analyst at the National Employment Law Project, said this will discourage people from filing for unemployment, which they already struggle to do out of feelings of shame.
“A lot of people don’t apply for unemployment insurance because they don’t think they are eligible but people also don’t apply because of the stigma,” she said. “This is an earned benefit people should consider they have a right to when they become unemployed through no fault of their own.”
Under the Middle Class Tax Relief and Jobs Creation Act of 2012, there were only narrow circumstances in which states could drug test for unemployment insurance, where testing was limited to only some types of work, such as jobs that require carrying a firearm, motor vehicle operators, carry passengers, aviation flight crew members, and railroad operating crews. But in March of 2018, Republicans used the Congressional Review Act to repeal the Obama-era rule. Under the law, the Labor Department still had to put forward a rule on the issue, which is why the department is now discussing drug testing a larger group of people who apply for unemployment insurance.
Now that the public comment period is over, the Labor Department has to analyze and respond to the public’s comments. Then, the department will continue to move forward with the rulemaking process.
Evermore said the department is saying that states can define what an occupation that regularly conducts drug testing is and establish a factual basis for allowing this drug testing. But that “factual basis” allows for an unusually broad range of information to justify state policies.
“That factual basis can include a wide swath of things including labor market surveys, reports of trade and professional organizations, academic, government and other studies. That’s incredibly broad in how states can establish what regularly drug testing means,” Evermore said.
She said there is also a potential for the states to use the definition of an employer “regularly” drug testing rather loosely.
“If it means pre-employment screening to states, which this rule allows for that possibility, then you could talk about any profession that routinely pre-employment drug screens rather than regularly drug screens, and that is a much bigger category of jobs. Retail even regularly drug screens for pre-employment in some states,” she said. “Right now [unemployment insurance] recipiency is already very low because people who need benefits have to go through a lot more regulatory hurdles than they have in the past and this is just another regulatory hurdle for them.”
If states took advantage of this rule broadening drug testing, however, it would be costly. The administrative funds states receive for unemployment insurance is based on unemployment rates and since the unemployment rate is low, states don’t have a lot of funds to work with, Evermore said.
“I’m a little bit uncertain states actually want to take this up given that it’s going to cost them a lot on the outset and they’re short on administrative funds anyway. But in the past few years states have been dancing around the issue,” she said. “Wisconsin passed a law that employers can voluntarily report to the [unemployment insurance] agency if somebody applies for a job and then was rejected for that job because they didn’t pass a drug test.”
Mississippi, Texas, and Wisconsin laws call for drug testing for their unemployment insurance programs. States have also shown a willingness to spend thousands of dollars to drug test people who apply for Temporary Assistance for Needy Families (TANF) benefits. In 2017, for example, states spent more than $490,000 to drug-test 2,541 people who had applied for TANF. These tests yielded only 301 positive tests, according to a ThinkProgress analysis.
On top of the costs and broad application, drug testing is unreliable for demonstrating if someone took substances while on the job and whether they used it recreationally on occasion or had an addiction. It doesn’t actually provide treatment and assistance for those who are living with addiction. And since medical marijuana is legal for adults in more than 30 states, there is a question of how this policy and state laws would interact.
Grant Smith, deputy director of national affairs at Drug Policy Alliance, said the rule is
out of step” with the direction the country is headed in when it comes to addressing addiction. The trend towards marijuana legalization “sets up further exacerbation of the conflict between federal and state law and would penalize people for acting in accordance with their state law,” he added.
“We’ve seen employers move away from even testing for marijuana so if the goal for DOL is to get an individual to be employable by testing them, it doesn’t make sense to be testing for marijuana when employers aren’t even looking for that anymore. Increasingly, because people are in compliance with state law, it’s becoming more of an impediment to hiring people when they test as a condition of providing an offer of employment or during the course of employment.”
A 2017 Quest Diagnostics Drug Testing Index study looking at drug screens in 2016 found that the rate of positive urine drug screens was at its highest since 2004. Behavioral Health Systems, a business that provides drug testing and other services, said many industries don’t test for marijuana because it would cause staffing issues. Some employers told the Society for Human Resource Management (SHRM) that because of how long marijuana stays in the body, they don’t bother testing for it, since it doesn’t tell them if workers were impaired during their jobs. At the same time, a 2017 Federal Reserve survey showed employers were concerned that an inability for applicants to pass drug tests made hiring a challenge.
The Drug Policy Alliance’s public comment on the rule mentions that drug tests can flag opioid or other controlled substance a person is taking from a prescribed medication. But people have to take further steps, such as contacting their doctor to speak with a medical review officer to assure them that the person is taking the drug legally. The Drug Policy Alliance also voiced concern that those who are receiving medication-assisted treatment for opioid addiction could possibly receive scrutiny in drug tests even as they pursue recovery.
In addition, putting people who are living with addiction in a situation where they can’t afford treatment isn’t going to put them in a stable situation to seek employment, Smith added.
Evermore said that there is a potential for a legal challenge to this rule based on the Fourth Amendment. In the past, courts have rejected governments’ mandated use of suspicionless drug-testing for public assistance. When Florida allowed mandatory drug testing for people seeking Temporary Assistance for Needy Families (TANF), the ACLU challenged it. A federal judge sided with the ACLU in 2011 and said that testing urine for drugs is a search and that the ability to apply for a public benefit like TANF could not depend on something unconstitutional.