Proposed Unemployment Drug-Testing Rule Set To Be Finalized

By Lindsey Weedston 01/18/19

The ACLU released a statement condemning the rule for potentially violating the Fourth Amendment.

person testing a sample of urine

The US Department of Labor proposed a new rule in November 2018 that would allow states to subject people applying for unemployment benefits to drug testing. The department opened up for comments on this proposal shortly after, and that comment period closed on January 4.

If the Department of Labor does not extend or re-open for comments, they will finalize the rule based on what they have collected.

The proposed rule would change the Middle Class Tax Relief and Job Creation Act of 2012. The Republican Congress had already removed restrictions specifically preventing states from drug-testing unemployment applicants in 2017. This caught the attention of labor rights and civil liberties groups who have been fighting against similar policies for years.

The ACLU released a statement on January 10 condemning the rule for potentially violating the Fourth Amendment, which protects against unreasonable search and seizure.

“Courts have said drug testing is a search and subject to Fourth Amendment protections,” wrote Kanya Bennett and Charlotte Resing. “So unless there are probable cause and individualized suspicion, there should be no search. Exceptions to this rule have been made when the government can show it has a ‘special need’ and that need outweighs individual privacy rights, but that is not the case here either.”

The ACLU successfully argued this point in court to end mandatory drug testing for individuals seeking Temporary Assistance for Needy Families (TANF) in Florida in 2011. They and other rights groups have also made the case that the cost of drug testing far outweighs any money saved by denying benefits to the few who test positive.

According to data collected by Think Progress, only 369 unemployment applicants tested positive for illicit drugs out of around 250,000 across 13 states. The drug tests cost those states $1.3 million collectively. 

Unlike welfare programs like TANF, unemployment insurance is not paid for by states or by the federal government. It’s a program paid for by employers via payroll taxes that provides recently unemployed individuals with a portion of their former wage or salary for a limited period of time. With unemployment rates currently at historic lows, funding the program should not be a concern.

Elizabeth Lower-Basch, director of income and work supports for the Center for Law and Social Policy (CLASP), spoke with The Fix on the legality and potential consequences of the proposed rule by the Department of Labor.

“I imagine that the administration will attempt to finalize the rule, and I imagine that there would be litigation afterward,” she said. “There’s a fairly technical argument related to the Congressional Review Act. The Obama administration had issued regulations to this law which were overturned by [the 2017] Congress via the Congressional Review Act because they’re not supposed to issue substantially similar regulations.”

The Congressional Review Act (CRA) gives Congress the power to review new federal regulations and overrule them by passing a joint resolution. However, the CRA also prohibits issuing a new rule that is substantially the same “unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”

“It’s just bad policy,” Lower-Basch concluded. “It’s really designed to stigmatize.”

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Lindsey Weedston is a Seattle area writer focused on mental health and addiction, politics, human rights, and various social issues. Her work has appeared in The Establishment, Ravishly, ThinkProgress, Little Things, Yes! Magazine, and others. You can find her daily writings at Twitter: