States have green light to drug test the unemployed

An Obama-era rule that restricted drug testing for unemployment insurance is now history.

Rep. Paul Ryan (R-WI) with Rep. Kevin Brady (R-TX) on the left, who authored the original provision. CREDIT: AP Photo/J. Scott Applewhite
Rep. Paul Ryan (R-WI) with Rep. Kevin Brady (R-TX) on the left, who authored the original provision. CREDIT: AP Photo/J. Scott Applewhite

Since the 1960s, federal law has banned states from drug testing jobless people who apply for unemployment benefits. After the recession, however, Republicans wanted to allow states to institute tests for the benefits.

They’ve gotten their wish. On Wednesday, the Department of Labor (DOL) officially did away with a regulation it had issued under President Obama that sharply limited states’ ability to implement drug tests.

Earlier this year, Congress voted to use the Congressional Review Act to undo the rule issued by the Obama administration in 2012 that kept any potential drug testing of those who apply for unemployment insurance very narrow. President Trump signed Congress’ repeal measure into law in March, and the final step was the DOL removing it from public record.

Now Congress is free to either write its own rule or have the DOL write one. Either option will almost certainly give states wide authority to implement drug tests. Wisconsin Gov. Scott Walker (R), who has pushed forward legislation in his own state to drug test people who receive unemployment benefits and food stamps, has written a letter to the Trump administration urging it to give him the authority to do so.

And Republicans in Congress appear eager to expand testing. Rep. Kevin Brady (R-TX), who authored the original provision undoing the Obama-era rule, called drug testing an “important reform to help qualified unemployed workers in their quest to find a new job,” while Rep. Pete Sessions (R-TX) has said it “benefits the unemployed by helping to assure future employers that unemployment claimants reentering the workforce are truly able and available for work.”


As things have long stood, states only had the authority to institute drug tests for the Temporary Assistance for Needy Families cash welfare program. Thus far, 13 states have instituted such regimes. But what their experience has proven year after year is that the tests, while costly to administer, turn up very few positive test results. Out of about 250,000 applicants and recipients among these states in 2016, just 369 tested positive; in four states, exactly zero people tested positive for illegal drug use. In the states with positive results, they ranged from a low of 0.07 percent of all applicants to a high of 2.14 percent, rates far below the nearly 10 percent drug use rate among the general population.

And while these results show that the needy are not more likely to have drug problems than anyone else, those who test positive and may need help might not necessarily get it. More people lost benefits last year because they couldn’t or wouldn’t follow through on getting a drug test than those who took the test and turned up positive — people who simply go without benefits or any other support. And many states haven’t increased budgets for treatment programs for those who do test positive.

Meanwhile, states collectively spent $1.6 million on drug testing, on top of the nearly $2 million spent during the previous two years, despite the apparent ineffectiveness of these programs. That’s money that could instead be used to expand welfare benefits or even drug treatment programs.