WASHINGTON—The federal Department of Labor published a final rule earlier this month that will allow states “to require drug testing for a far larger group” of applicants for unemployment compensation.
The rule, which will go into effect November 4, supersedes an Obama-era regulation that Congress and the Trump administration revoked in 2017. Under a 2012 federal law, states can test applicants for unemployment benefits either if they were fired from their previous job for drug use or if suitable work is only available for them in an occupation that regularly conducts drug testing.
The revoked rule, from 2016, defined “occupations that regularly conduct drug testing” as those “specifically identified in a State or Federal law as requiring an employee to be tested for controlled substances,” specific occupations identified in federal regulations, and occupations where employees must carry firearms. Those occupations included air-traffic controllers, bus drivers, railroad operating crew members, and workers operating or maintaining oil and natural-gas pipelines.
The new rule leaves that definition up to the states, enabling them to require testing in a much wider group of occupations. The Department of Labor said in a statement that it “provides greater clarity and flexibility to states” than the previous rule’s “one-size-fits-all standard.”
That allows testing to be expanded to “anyone else that the state decides,” Michele Evermore, senior researcher and policy analyst with the National Employment Law Project, told LaborPress. It will let states include occupations based on anecdotal evidence, she said.
She says the rule likely violates the Fourth Amendment’s protection against unreasonable searches, because it’s a “suspicionless search.”
“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,” Evermore said in a statement Oct. 4. “Applying for earned benefits does not provide grounds to reasonably suspect a person of drug use.”
She also called the rule “a not-so-subtle attack on the character of unemployed Americans” that “seems rooted in a blanket assumption that they themselves are to blame.” “Drug testing is simply a lazy way of blaming the victims of larger economic trends or corporate practices such as downsizing, outsourcing, and offshoring,” she added.
Three states—Mississippi, Texas, and Wisconsin—have enacted laws to permit drug testing of applicants for unemployment, but were not allowed to do it under the Obama-era rule.
While courts have generally held that drug testing by private employers or in safety-related jobs is constitutional, there are stricter Fourth Amendment standards when it comes to applicants for public benefits.
In 2014, the federal 11th Circuit Court of Appeals unanimously upheld a lower-court decision that a Florida law mandating drug testing of all applicants seeking Temporary Assistance for Needy Families was unconstitutional. “The State has failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion,” it wrote, noting that the lower court had been given “no competent evidence” of “the sort of pervasive drug problem the State envisioned.”
In the four months before a lower-court judge issued an injunction halting the program, Florida tested 7,062 TANF recipients. Only 32 failed—less than one in 200, and most of those positives were for marijuana.
The Labor Department, replying to public comments questioning the rule’s constitutionality, said that “granting States broader flexibility to implement drug testing in occupations that regularly test for drugs in their particular State does not violate the Fourth Amendment, and States that choose to drug test under this rule are responsible for implementing drug testing in a manner consistent with Constitutional requirements.”
It also said that figures showing an extremely low rate of positive tests among TANF applicants “did not adequately provide reliable information” to make projections about testing applications for unemployment compensation. It dismissed concerns about false-positive tests by saying that issuewas “outside the scope of this rule.”
Marijuana is the drug most likely to be found by drug testing, as its metabolites stay in the body much longer than those of opioids, cocaine, or methamphetamine. According to the federal Centers for Disease Control, marijuana metabolites can be detected in urine for up to a week in intermittent users, and 30 days for regular users. Opioid and methamphetamine metabolites are gone in two to five days, and those of cocaine in one to three days. The Labor Department said that states where marijuana is legal for medical and/or recreational purposes have the option not to require testing, and it remains illegal under federal law.
Evermore, however, believes the rule is not primarily intended to catch drug users applying for unemployment benefits. It’s “more about creating hurdles for people to apply,” she told LaborPress.