Department of Labor Proposes Flexibility in Unemployment Insurance Drug Testing

Respecting the breadth and diversity of individual state economies, the U.S. Department of Labor has proposed flexibility for states in determining occupations for drug testing of unemployment compensation (UC) applicants. In 2017, Congress passed, and the President signed, a resolution of disapproval revoking a 2016 rule that imposed a one-size-fits-all approach on states with regard to identifying occupations for regular drug testing.

The Middle Class Tax Relief and Job Creation Act of 2012 amended the Social Security Act to allow states to conduct drug testing for UC applicants for whom suitable work is only available in an occupation that regularly conducts drug testing. The state may then choose to determine to offer or deny UC benefits to an applicant who tests positive for drug use under these circumstances.

Because this statute was not repealed or amended by the resolution of disapproval, the statute continues to require the Department to issue regulations. Accordingly, the Notice of Proposed Rulemaking (NPRM) announced represents a substantially different and more flexible approach to statutory requirements than the 2016 rule. This NPRM proposes that the federal standard recognize states’ diverse situations by permitting, but not requiring, them to test UC applicants for whom suitable work is only available in an occupation where the state has a factual basis to determine that employers conduct drug testing as a standard eligibility requirement for obtaining or maintaining employment in the identified occupation.

The Department welcomes and encourages public comment on this proposed rule. Individuals or organizations wishing to comment on the proposed rule must follow the instructions provided in the Federal Register.

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