Congress recently overturned a regulation passed in 2012 which narrowly defined when states could drug test applicants for unemployment insurance.
This 2012 rule only permitted drug testing in two circumstances.
- When an unemployed worker lost their job due to illegal use of drugs
- When a worker’s occupation was subject to regular drug testing, such as those in the transportation industry
Why many employers opposed the 2012 rule:
Opponents of the regulation’s broad restrictions on drug testing argued that:
- People receiving unemployment benefits should be ready and immediately able to go to work, which means being drug-free.
- Employers can require job applicants to take pre-employment drug screens. Businesses have the right to not hire people who fail those tests. Therefore, if a person can’t get a job due to drug use, they shouldn’t be able to get unemployment benefits either.
Social Security Act prohibits obstacles to obtaining benefits:
While unemployment insurance is a state-run program, it is funded by both federal and state dollars and was created by the federal Social Security Act.
Under the Act’s provisions:
- States are not permitted to create obstacles that hinder a worker’s ability to collect benefits — unless those obstacles are closely tied to the reason that person became unemployed.
Opponents of this change question its validity:
Now that the 2012 regulations are overturned, businesses are left asking many new questions.
- Is it permissible to subject someone to a drug test in order to receive the unemployment insurance benefits to which they are entitled?
- Will this violate the Fourth Amendment’s protection of citizens from unreasonable search?
- Are there studies that show a higher use of illegal drugs by unemployed workers than the rest of the population?
- Is this even a good use of public funds?
- What about patients with medical marijuana prescriptions?
- What are the consequences in a states where recreational marijuana is legal?
- How will it affect families who may already be struggling?
What will this mean in our state?
It’s unlikely that Washington State will implement drug testing for unemployed workers — but every business needs to stay abreast of the ways this issue will play out on a national and state level.
Congress may now pass a new regulation to give states more control over this issue.
If that happens, companies will need to carefully navigate through a whole new crop of questions and lawsuits. And we’ll be here to guide you!