Last year, President Trump revoked Obama-era regulations that limited the ability of states to mandate drug testing as a condition of receiving unemployment insurance benefits. Those regulations from 2012 and 2016 basically limited drug testing to situations where a recipient was terminated for illegal drug use or if the recipient worked in a limited list of occupations that traditionally conduct such testing, generally meaning safety-sensitive jobs.

On November 5, the U.S. Department of Labor issued new proposed regulations that would give states broad discretion to conduct drug testing as they see fit. State legislatures may enact laws that subject essentially any unemployment recipient to random or other drug testing. It remains to be seen how many states will take DOL up on this offer. Such states would bear the expense of drug testing, and many may conclude that the benefits of disqualifying drug users from receiving benefits are outweighed by the cost and administrative burden of establishing drug testing programs. States with legalized medical or recreational marijuana would most likely not make a positive test for this substance a disqualifying factor for collecting unemployment benefits.