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The Truth About Drug-Testing the Unemployed

The law has many problems, including Constitutionality. And while proponents say tax money should not fund drug use, opponents see more sinister stereotyping at work.

The new federal law that lets states drug-test applicants for unemployment compensation was a small win for the Republican-led efforts to examine the urine of everyone receiving government safety-net benefits. How many people it will affect depends on how the Department of Labor establishes the regulations—and on whether the courts continue to hold that such policies violate the Constitution’s protection against unreasonable searches.

House Republicans initially wanted to let states drug-test all 7.5 million people collecting unemployment compensation. The compromise reached in the payroll tax-cut deal, along with cutting six months off the time people can collect, authorizes states to test applicants for benefits in two circumstances: if they were fired for using drugs, or if the only occupation they’re suited for is one the Department of Labor lists as commonly requiring drug-testing.

The first provision is “nothing new,” says George Wentworth, a senior staff attorney at the National Employment Law Project’s Connecticut office. Laws in about 20 states, he says, specifically state that people fired for drug use are not eligible for unemployment benefits, and all states disqualify people who lost their jobs because of “willful misconduct.”

The second provision might open a bigger loophole. Current federal law states that the only criteria for eligibility are “fact and cause” -- the fact being that someone is unemployed, and the cause of it being something that wasn’t his/her fault, Wentworth explains. The Department of Labor, he says, has previously warned states considering drug-testing people on unemployment that it would violate federal law, so they  would lose federal funding for the benefits, and employers in those states would lose tax credits. 

“It’s certainly a foot in the door,” says Bill Piper, head of national affairs for the Drug Policy Alliance.,“The fact that Republicans won on this is certainly going to embolden them to move on to other forms of drug-testing.” However, he suspects that such moves might backfire politically. It’s one thing to pick on the poor, he says, but “everyone knows someone afraid of losing their job.”

The key question is which jobs the Department of Labor will classify as requiring drug-testing. The Supreme Court has permitted it in occupations where there is a “public safety” issue, such as Customs agents and railroad workers involved in accidents, notes Jesselyn McCurdy, a senior policy counselor with the American Civil Liberties Union. But she wonders if the department would include work at employers that customarily test all job applicants, such as Home Depot. “Is there a public-safety issue with Home Depot?” she asks. 

The ACLU has not decided whether it will challenge the law, McCurdy says, as it would have to wait for states to enact laws to drug-test people on unemployment. In the last two years, such legislation has been introduced in 12 states. The only one passed so far has been in Indiana, where people who fail a pre-employment drug test or refuse to take one “without good cause” have to be tested if they want to keep receiving extended benefits.

However, measures requiring drug-testing for public benefits have been held unconstitutional in the past. In 2003, a federal appeals court struck down a Michigan law requiring drug-testing of people receiving Temporary Assistance for Needy Families. In order to allow “suspicionless drug testing,” it said, the state had to prove a “public safety” need substantial enough to override privacy rights and the Fourth Amendment requirement for “individualized suspicion.” In 1997, the Supreme Court struck down a Georgia law requiring candidates for public office to be drug-tested. Justice Ruth Bader Ginsburg wrote that the law “diminishes personal privacy for a symbol’s sake,” and that the arguments for it lacked “any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.”