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U.S. Labor Department Gives States Latitude on Drug Testing Unemployment Recipients

    Client Alerts
  • October 16, 2019

In 2012 as part of a tax reform bill, Congress directed the Department of Labor to issue regulations that would permit states to condition unemployment insurance benefits for certain recipients on their ability to pass drug tests. The law defined such recipients as those persons in jobs that regularly conduct drug testing. In 2016, the Obama administration issued rules that defined these covered jobs as eight categories of work, including drivers and work requiring carrying of firearms. The Trump administration withdrew these rules, and on October 3, DOL issued new final regulations replacing the previous rulemaking. 

Instead of listing jobs eligible for drug testing, DOL decided to leave this determination to the states. The rules explain that drug testing may be customary for different occupations in different areas of the country, and that it was impractical to provide a complete list of all such occupations. State agencies have the discretion to determine what jobs regularly require testing, and they may change this list over time.

The rules take effect November 4, 2019. It remains to be seen how many states will decide to begin drug testing unemployment benefit recipients. The cost and administrative burden of conducting such tests may dissuade states from taking advantage of the rules, especially if they conclude that the benefit of potentially disqualifying some recipients is outweighed by the overall expense.