LegiStorm

Summary:

Recent interest in Unemployment Compensation (UC) drug testing has grown at both the federal and state levels. The policy interest in mandatory drug testing of individuals who are applying for or receiving UC benefits parallels two larger policy trends. First, some state legislatures have considered drug testing individuals receiving public assistance benefits. While UC is generally considered social insurance (rather than public assistance), the concept of drug testing UC recipients (who are receiving state-financed benefits from a program authorized under state laws) could be interpreted as a potential extension of this state-level interest. Second, over recent years, Congress has considered issues related to UC program integrity, including drug testing, which may be viewed as addressing UC program integrity concerns. Under the current interpretation of federal law, and subject to specific exceptions, the U.S. Department of Labor (DOL) requires states to determine entitlement to benefits under their UC programs based only on facts or causes related to the individual's state of unemployment. Under this reasoning, individuals may be disqualified for UC benefits if they lost their previous job because of illegal drug use. Until recently, the prospective drug testing of UC applicants or beneficiaries has been generally prohibited. However, P.L. 112-96 expanded the breadth of allowable UC drug testing to include prospective drug testing based upon job searches for suitable work in an occupation that regularly conducts drug testing. On October 4, 2019, DOL issued a new final rule on this type of prospective testing after a previous, promulgated rule was repealed using the Congressional Review Act. This new final rule is effective November 4, 2019. Stakeholders have made a variety of arguments for and against expanded UC drug testing. Proponents of prospective drug testing cite not only program integrity concerns, but also the importance of job readiness for UC claimants as well as state discretion in matters of UC eligibility and administration. Opponents of the prospective drug testing of UC claimants argue that it would impose additional costs and undermine the fundamental goals of the UC program, which include the timely provision of income replacement to individuals who lost a job through no fault of their own. Some stakeholders also expressed concern that expanded UC drug testing could create barriers to UC benefit receipt among eligible individuals and discourage UC claims filing. Stakeholders have also raised at least two legal concerns with the new final UC drug testing rule: (1) some commenters have argued that the new final rule may violate the Fourth Amendment of the U.S. Constitution, and (2) some commenters have argued that the new final rule improperly delegates authority to the states to identify occupations that regularly conduct drug testing. Other policy issues to consider related to expanding UC drug testing include administrative concerns, such as state establishment of a drug testing program for UC claimants as well as the potential provision of and funding for drug treatment services. For a shorter summary of recent events related to UC drug testing, see CRS Insight IN10909, Recent Legislative and Regulatory Developments in States' Ability to Drug Test Unemployment Compensation Applicants and Beneficiaries. For additional information on the federal-state UC system generally, see CRS Report RL33362, Unemployment Insurance: Programs and Benefits. For additional insights on reissuing a rule that had been repealed under the Congressional Review Act, see CRS Insight IN10996, Reissued Labor Department Rule Tests Congressional Review Act Ban on Promulgating "Substantially the Same" Rules.