On November 5, 2018, the Department of Labor issued new proposed parameters for states who want to require drug testing as a requirement for collecting unemployment insurance (UI) benefits. Congress has voided a previous Obama administration rule that limited potential testing to those occupations—like police and railroad operators—that regularly require drug tests often as a provision of law. This implemented a 2012 law that allowed states to require drug testing among UI beneficiaries in the narrow circumstances when it was a necessary condition of working. The current administration has completed a 180-degree turn, proposing that states can require testing among anyone working in a field that requires a pre-employment drug test. In these fields, drug tests are an optional screening tool. In the following comment submitted to the U.S. Department of Labor, TCF senior fellow Andrew Stettner argues that extending drug testing so broadly is a bridge too far, impinging on fundamental constitutional rights and eroding unemployment as an earned benefit. Courts would likely find these to be an unlawful search and a likely violation of the Fourth Amendment. Stettner calls on the department to withdraw this rule. The author is grateful to the National Employment Law Project for model comments, on which the following is based.
As a senior fellow of The Century Foundation and an elected member of the National Academy of Social Insurance, I write to comment on the above referenced notice of proposed rulemaking (NPRM) [known as RIN 1205-AB81 Federal-State Unemployment Compensation Program; Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants Under the Middle Class Tax Relief and Job Creation Act of 2012] issued by the Department of Labor (DOL) and published in the Federal Register on November 8, 2018.
As an expert who has studied the unemployment insurance system for the past twenty years, I am deeply concerned about the damage this proposed rule could pose to the UI program, the workers it serves, and the states who administer it. I assert that the DOL is going against the wishes of Congress by divesting the oversight authority from the states. Further, the proposed scope of drug testing goes far beyond what the statute authorizes, and could well be implemented in a manner that is unconstitutional under the Fourth Amendment.
The proposed scope of drug testing goes far beyond what the statute authorizes, and could well be implemented in a manner that is unconstitutional under the Fourth Amendment.
In 2012, as part of the Middle Class Tax Relief and Job Creation Act of 2012 (MCTRA), Congress for the first time authorized, but did not require, states to conduct mandatory drug testing of UI applications only if the applicant was “terminated from employment with the applicant’s most recent employer (as defined under state law) because of the unlawful use of controlled substances;” or if the applicant “is an individual for whom suitable work (as defined under state law) is only available in an occupation that regularly conducts drug testing (as determined under regulations issued by the Secretary of Labor).”
The Department of Labor previously promulgated final rules in compliance with this legislation, defining “occupation” as a position or class of positions that are required, or may be required in the future, by state or federal law to be drug tested. These included occupations that require carrying a firearm, motor vehicle operators carrying passengers, aviation flight crewmembers and air traffic controllers, and railroad operating crews.
Concerns with the New Regulation
Unhappy with the new regulation, Congress invoked the Congressional Review Act (CRA) in March, 2017, passing legislation that undid the rule and, by law, forbid the Department of Labor from issuing a new, substantially similar regulation. In issuing this new rule on the same provisions of the same underlying law, the DOL is flouting the original intent of the Congressional Review Act, which forbids the executive branch from re-regulating the same matter without additional legislation. While I do not believe the changes made by the DOL to this rule meet the CRA’s test, there are major and fundamental differences between the original rule and this version, but they are changes for the worse.
At issue is which workers can be subject to a drug test as a condition of UI eligibility. The definition of a testable occupation is dramatically expanded by including not just those for whom suitable work is in professions that test on a regular basis as a condition of continued employment, but those which require pre-employment screening as well. In addition, the Department of Labor in this rule abdicates its authority to determine the full scope of professions that drug test by allowing states to develop, on a virtually unfettered basis, a “factual basis for finding that employers hiring employees in that occupation conduct pre- or post-hire drug testing as a standard eligibility requirement for obtaining or maintaining employment in that occupation.”
Taken to its full effect, the potential of this initiative could be transformational to the UI program. Pre-employment drug testing is widely used in the private sector, spanning occupations ranging from construction, to manufacturing, to health care jobs. Despite the decline in the use of drug testing by employers as a result of concerns about its effectiveness, as of 2011, 57 percent of all employers report requiring a pre-employment drug test. Under the DOL’s proposed rule, states could allow for a widespread requirement of drug testing for UI benefits for a large percentage of its frontline workforce.
Such a proposal would upend the legal principle that UI benefits should be paid to experienced workers who are involuntarily unemployed “when due,” based on the reasons for their unemployment, availability for work, and active work search. UI is not based on any personal characteristics, like a candidate’s income, or on behaviors like drug use. Allowing states to define their own drug testing provisions puts an additional capricious restriction on benefit eligibility, one that is in stark conflict with unemployment insurance benefits’ original conception as an earned benefit. It’s akin to denying a worker access to his or her pension during retirement based on an unrelated personal behavior or an illness. There would be an uproar if the DOL would legislate such a rule for social security or private pension, and the same should be true of this UI benefits proposal.
The proposal would provide ample incentives for the employer community in states to push their state government to adopt a broad-based test requirement. Each ex-employee that successfully files for UI leads to a charge on their employer account and subsequently to a larger tax bill. And based on a false understanding of drug addiction, many employer advocates believe that requiring a drug test for UI would lead to a larger pool of drug-free workers for their businesses.
It’s especially concerning that such a broad provision would hinge on state law provisions around suitable work. The original purpose of suitable work provisions was to protect workers from being forced to accept substandard work offers as a condition of receiving UI benefits. Here their likely use would be to target testing at workers based on their previous occupation. It is one thing, as in the original rule, to contemplate drug testing and UI for specialized workers, like those working on railroads or in protective service occupations. The job search of these workers is likely to be limited to jobs that regularly drug test. But how about frontline construction workers or health care workers? In these occupations, pre-employment testing may be prevalent; but it is certainly not ubiquitous, and these less specialized workers are more likely to be also fit for other types of employment that don’t require testing. In the construction proposed by the DOL, states could easily disqualify workers who could indeed find a suitable job in work that does not require drug testing as a condition of hiring or ongoing employment.
The original purpose of suitable work provisions was to protect workers from being forced to accept substandard work offers as a condition of receiving UI benefits. Here their likely use would be to target testing at workers based on their previous occupation.
At a time when the percentage of jobless workers collecting unemployment checks has reached nearly an all-time low of 27 percent, this rule would lead to many more working families who had in fact earned unemployment benefits to be denied assistance. From their perspective, states would be saddled with the tremendous cost of providing drug tests to unemployment benefits claimants, at a time when the federal grants on which states principally rely in order to operate their programs have shrunk dramatically.
Moreover, the DOL would be saddling states with the prospect of costly litigation regarding these provisions. Courts have consistently held that government-mandated drug testing is a search subject to the restrictions of the Fourth Amendment. Absent probable cause, a suspicionless drug test can only be constitutional if the government shows a “special need” to conduct testing, such as employment or schools, but have specifically found that suspicionless drug testing in other areas, including as a condition of receiving government benefits, constitutes a violation of the Fourth Amendment. A state rule based on this DOL guidance would leave states wide open to legal challenges, challenges in which most courts would rule against the states.
Indeed it was these concerns that made Congress give the Secretary of Labor the authority to require drug testing as a condition of UI benefits for only a limited set of occupations. It is unlawful for the DOL to abdicate its responsibility to determine which occupations are subject to this provision merely because of its desire “to provide flexibility to States to choose a system that matches its workforce best.” And by doing so, it acts in an arbitrary and capricious manner, in violation of the Administrative Procedures Act.
The Middle Class Tax Relief Act struck a careful balance in laying out the limited circumstances under which drug testing of UI claimants could be allowed. The current rule upends the intent of these provisions. As an expert that has studied the UI system for the past twenty years, the proposed rule represents one of the more dangerous proposals I have seen and an unprecedented abdication of DOL’s responsibility to protect UI claimants and the states that operate UI programs. I strongly encourage the department to withdraw the rule.
Senior Fellow, Washington, D.C.