Trump administration says states can waste money drug-testing the unemployed

A newly finalized rule from Donald Trump’s Labor Department will allow states to require a wide swath of unemployed workers to undergo drug testing just to receive their unemployment insurance benefits. This comes despite significant evidence that state drug-testing regimes are expensive, demonize and inconvenience the poor, and are unlikely to find much illegal drug use.

Back in 2012, Congress passed a law that allowed states to require drug tests for some unemployment insurance beneficiaries. An Obama administration rule limited this to people who worked in a narrow list of professions that would regularly require drug tests. Congressional Republicans, who wanted to drug test many more unemployed people, rescinded this rule soon after Trump was inaugurated, leaving his Department of Labor to devise a much broader policy.

On Thursday, the department announced its new rule, which it said would mean “greater flexibility and broader coverage than previous rule.” While it does not require states to implement drug testing, it does effectively permit them to choose to drug test any unemployment beneficiary they please.

“In this final rule, the Department implements a more flexible approach to the statutory requirement that is not substantially the same as the rescinded 2016 final rule, enabling States to enact legislation to require drug testing for a far larger group of UC applicants than the previous final rule permitted,” the Labor Department states. “This flexibility recognizes the diversity of States’ economies and the different roles of employer drug testing across the States.”

Over the past few years, ThinkProgress did an annual examination of states that implement a drug-testing requirement for welfare beneficiaries. Each year, the drug-testing programs were expensive and found almost no illegal drug use. While these programs created additional hoops for poorer citizens to go through to get temporary assistance, even after screening for “reasonable suspicion,” only a few hundred people each year tested positive.

The American Civil Liberties Union opposed this new rule and has raised practical and constitutional concerns.

Kanya Bennett, the senior legislative counsel for the ACLU’s Washington legislative office, said on Thursday that states should “think very carefully” about how they implement drug testing for the unemployed, “if they do it at all.” Should states implement a blanket policy drug testing everyone, she predicted, “I’m confident that there will be some serious questions being raised about its constitutionality and possible litigation.” She noted that a 2011 Florida law to require all welfare applicants to take a drug test regardless of reasonable suspicion, pushed by then-Gov. Rick Scott, a Republican, was struck down as unconstitutional.

And since “current law already denies unemployment benefits to people fired from a job for drug use,” Bennett added, “we don’t think states need to do this.”

The National Employment Law Project has also raised concerns about the negative effects this rule could have if states choose to implement it. Michele Evermore, the group’s senior researcher and policy analyst, said in a phone interview that it is “an expensive solution in search of a problem.”

Throwing up new “hurdles” for unemployed people, she noted, could be huge problem not just for unemployed people but state and local economies as well. “It is a lifeline for people who become involuntarily unemployed, through no fault of their own,” Evermore said. “But the other thing is it is an automatic economic stabilizer for the entire community or the state, a macroeconomic tool that keeps a state from spiraling downward. A state that [adopts] rules to create more hurdles is taking away a recession-readiness tool.

Evermore noted that the unemployment system is not some public assistance program but an insurance policy that companies pay into on their workers’ behalf, much like Social Security or a 401(k). “This is something that your employer pays into, that you’re entitled to because you’ve met a certain set of criteria. If a person legitimately is out of work, they should absolutely have access to this program,” she explained.

Instead, drug testing could take those benefits away from many unemployed people — even if they do not use illegal drugs at all. She noted that some drug tests come back positive due to legally prescribed medications and over-the-counter products, and that getting to the drug-testing facilities can be a burden on people with access to transportation.

And, Evermore warned, a growing number of people are already opting not to apply for their unemployment benefits “because they already believe they’re not gonna have access.” Requiring drug tests, she predicted, “could have a chilling effect on people who are otherwise entitled to this benefit not even applying. It may not be because they’re afraid they’ll fail, they just don’t want their privacy violated.”

In an email, Maria McFarland Sánchez-Moreno, executive director of the Drug Policy Alliance, also slammed the Trump administration’s new rule. “This latest push to require people seeking unemployment benefits to undergo drug testing is invasive, cruel, and senseless,” she wrote. “It will only compound the problems of people who are already struggling economically. Politicians have long used drugs as an excuse to stigmatize and punish already low-income people and communities of color; this Trump administration move is taken squarely from that playbook.”

The Labor Department’s announcement ironically ended with a note that its mission “is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.”

Published with permission of The American Independent Foundation.