President nullifies DOL unemployment drug testing rule

By David Stephanides

On March 31, President Trump signed a congressional joint resolution of disapproval (H.J. Res. 42) that nullifies a Department of Labor Employment and Training Administration final rule. Seen by some as a limitation on states’ ability to require those who apply for unemployment benefits to submit to drug testing, that rule established, for state unemployment compensation program purposes, occupations that regularly conduct drug testing.

The DOL regulations, which were finalized on August 1, 2016, and effective September 30, 2016, implemented the Middle Class Tax Relief and Job Creation Act of 2012 amendments to the Social Security Act. They permit states to enact legislation that would allow state unemployment compensation agencies to conduct drug testing on UC applicants for whom suitable work (as defined under the state law) is available only in an occupation that regularly conducts drug testing (as determined under regulations issued by the Secretary of Labor). States may deny UC to an applicant who tests positive for drug use under these circumstances.

Earlier, the White House had signaled its support for H.J. Res. 42, saying that the final rule it would nullify “imposes an arbitrarily narrow definition of occupations and constrains a State’s ability to conduct a drug testing program in its unemployment insurance system.”

The Department of Labor issued a statement saying “The rule contradicted clear congressional intent—it narrowly limited the circumstances under which drug testing may be carried out and constrained a state’s ability to conduct a drug testing program under the act.” Acting U.S. Secretary of Labor Ed Hugler commented that “The Department of Labor supports the president’s nullification and looks forward to examining additional flexibilities for states relative to the drug testing of persons seeking unemployment benefits.”

The 2012 law amended the Social Security Act to add a new subsection permitting states to drug test unemployment compensation applicants as a condition of eligibility and deny jobless benefits for failing the test, under two specific circumstances:

If they were terminated from employment with their most recent employer because of the unlawful use of a controlled substance.
If the only available suitable work for an individual was in an occupation that regularly conducted drug testing.

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