Unemployment Drug Testing Could Increase

By Lehr Middlebrooks Vreeland & Thompson, P.C.

August 28, 2018

In 2017, Congress passed a resolution to undo an Obama-era Department of Labor rule regulating drug testing for unemployment benefit recipients. After President Donald Trump  approved the resolution, the DOL officially rescinded the rule, which limited drug testing to applicants in particular industries and positions, and those previously terminated for drug use.

This week, the DOL released its draft rule to expand states’ ability to condition unemployment benefits on drug testing. The draft rule allows states to drug test unemployment applicants whose only “suitable work” is in an “occupation that regularly conducts drug testing.” The rule further allows states to deny benefits if the applicants test positive for controlled substances. The rule does not define “suitable work” and allows for states to do that, but the DOL does provide a list of jobs that should regularly be tested.

While there are equal amounts of support and criticism regarding this proposed rule, there  is no doubt it will be challenged. Many opponents argue that such drug testing might violate applicants’ privacy rights under the Fourth Amendment and would drain state resources. It will likely take some time before the proposed law could be implemented in light of potential challenges. However, at this time, it might not have a high impact across the country as currently, only approximately three states have passed laws allowing for such drug testing. That being said, numerous states have expressed interest in implementing such requirements. It is likely that after the 2018 elections, there will be more movement among the states on this issue.

Notably,  if something like this was implemented, it could impact employers’ policies and procedures and their potential workforce. On the positive, it would allow employers to save on potential unemployment costs for former employees who fail their benefit drug test. There are certainly particular industries with high rates of turnover and employee drug use wherein a rule like that would help  curb their costs and the number of claims employers face. However, to the extent an employer could  access or discover the results of a job applicant’s previous unemployment compensation drug test, through voluntary disclosure  or otherwise, it would result in multiple issues. It could result in employers denying employment to applicants who are reformed and would be good for a particular position. It  could also result in ADA violations as recovering drug addicts are qualified individuals with disabilities. Further, it could open the employer up to privacy violations. Ultimately, it is a developing issue  that employers should watch over the next year or two to determine if and how states’ laws change and how it could impact employers.