In March, Congress nullified prior U.S. Department of Labor regulations that significantly limited states’ ability to mandate drug testing as a condition of receiving unemployment benefits. The joint resolution stated that such testing would be permitted in two circumstances: (1) where the employee had been terminated for unlawful use of a controlled substance or (2) where the only suitable work available for the recipient regularly includes drug testing. On August 21, DOL submitted a proposal to identify those occupations that regularly require drug testing.
 
Once finalized, this process will allow states to decide whether to require drug testing as a condition of receiving unemployment benefits. The list of allowable occupations for testing will likely focus on safety-sensitive jobs. Most states already prohibit persons terminated for illegal drug use from receiving unemployment benefits. States considering this option will need to balance their desire to bar benefits for active drug users against the cost of conducting a drug testing program, especially if the anticipated rate of positive test results is low. States with legal medical or recreational marijuana laws would presumably need to decide whether to test for that substance. Employers’ unemployment insurance premium experience ratings could conceivably be lowered based upon termination of benefits due to such drug use.