The Truth About Drug-Testing the Unemployed

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.”

Last October, federal judge Mary S. Scriven halted Florida’s program for drug-testing people on public assistance. “The State invokes the government’s general interest in fighting the ‘war on drugs’ and the associated ills of drug abuse generally to contend that TANF funds should not be used to fund the drug trade. The Court agrees,” she wrote. But if that logic were accepted, she added, then Florida “could impose drug-testing as an eligibility requirement for every beneficiary of every government program. Such blanket intrusions cannot be countenanced under the Fourth Amendment. What the Fourth Amendment requires is that such incursions by the Government must be reserved for demonstrated special needs of government or be based on some showing of reasonable suspicion or probable cause.”

In the four months before Judge Scriven halted the program, Florida tested 7,062 TANF recipients. Only 32 failed—less than one in 200, and most positives were for marijuana. The state had to reimburse the ones who passed for the cost of the test, roughly $30 each, for a total of more than $200,000. It claimed that testing had saved money, however, because it did not have to pay benefits to the 1,597 applicants who did not take the test.

The state’s lawyers contended that the only reason those people refused to take a drug test was because they were afraid they would fail. Judge Scriven dismissed that argument, saying that they might have been unable to afford the cost, would not consent to an invasion of privacy, or had found a job.

“Florida had absolutely no evidence that the TANF population used at rates greater than the general population,” says Theshia Naidoo, a staff attorney with the Drug Policy Alliance in California. “In fact, the study they did showed the opposite.” In a 1999-2001 demonstration study of TANF recipients, only 5 percent tested positive for drugs, lower than the estimated 8 percent rate of drug use among all Florida residents. The study also found “very little difference between drug users and non-users” in their ability to find jobs.

When Indiana started testing people applying for job training last year, less than 2 percent tested positive, says Wentworth.

Some surveys have shown that the unemployed use drugs at a higher rate than the general population, says Mark O’Brien of the Legal Action Center, but people collecting unemployment benefits are a subset of the overall unemployed: “They have been employed recently.” (Or not so recently, given the high levels of long-term unemployment.) Testing people receiving benefits is also unfair, he contends, because “it’s an insurance policy,” and people and their former employers “have paid the premiums.”

Another issue is that because of the pharmacokinetics of different drugs—how the body processes them—drug tests are far more likely to detect marijuana, which can stay in fatty tissues for as long as five weeks, than heroin, prescription narcotics, cocaine, or methamphetamine, which can largely be eliminated from the body within 24 hours. The testing programs proposed recently also have not included testing for alcohol—the cheapest and most easily available intoxicant on the market.

“It seems extremely hypocritical and punitive to drug-test for marijuana and not for alcohol, which is much more correlated with loss of productivity,” says Bill Piper.

The primary argument for drug-testing the unemployed is that taxpayers’ money shouldn’t go to buy drugs. Opponents see more sinister stereotyping at work. A National Employment Law Project legislative update in January denounced the testing proposal as inspired by “baseless characterizations of the unemployed as lazy, drug-abusing, and stupid.”

“Congressional Republicans have been more eager to blame the unemployed for unemployment than to put forth a proactive jobs agenda that will put people back to work,” says a Democratic congressional staffer who asked to remain anonymous.

House Ways and Means Committee chair David Camp of Michigan, the lead Republican negotiator on extending unemployment benefits, did not respond to emailed questions his office asked AlterNet to send.

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