U.S. House Approves Measure Aimed at Expanding Drug Testing of People Who File for Unemployment Assistance

Nearly 50 Civil Rights, Faith, and Criminal Justice Organizations Send Letter to Congress Opposing Legislation

Washington, DC–(ENEWSPF)–February 15, 2017. The U.S. House approved a measure today (H.J. Res 42) that would repeal a recently finalized Department of Labor rule that interpreted a 2012 federal law that permits states to drug test people who file for unemployment insurance in certain circumstances.

Today’s vote is the latest in a string of efforts by Republican leadership to use congressional authority granted under a federal law known as the Congressional Review Act to repeal recently finalized federal regulations.  Before the Department of Labor’s rule can be repealed, however, the Senate must vote to do the same.  The White House has stated in a Statement of Administration Policy that it supports H.J. Res 42. Advocates see the repeal of the Department of Labor rule as a first step by some Republicans in Congress at undoing federal restrictions on states conditioning receipt of unemployment and other forms of public assistance on a drug test.

“It’s disappointing that Republican leadership in Congress is choosing to focus on drug testing people who have lost their jobs rather than helping them,” said Grant Smith, deputy director of national affairs with the Drug Policy Alliance. “It’s shameful that Congress would demonize people who use drugs, especially when there has been so much recent rhetoric about helping people who struggle with opioid and other forms of addiction. The reality is that people who receive public assistance are no more likely to use illicit drugs than the general population and these kinds of drug testing programs are a big waste of tax dollars for states to run and defend in court,” said Smith.

On Tuesday, nearly 50 concerned civil rights, faith, and criminal justice organizations sent a letter to Congress opposing this drug testing legislation.

In 2012, Congress passed a law allowing states to require drug testing as a condition of receiving unemployment insurance in cases where a person was let go from their last job because of unlawful drug use or cases where a person applying for unemployment insurance who is only available for suitable work in an occupation that regularly conducts drug testing. The 2012 federal law also instructed the Department of Labor (DOL) to define through regulation what those occupations that regularly drug testing are, and last year, DOL published a final rule limiting those occupations primarily to those with a public safety concern (aviation and railroad workers, jobs that require carrying a firearm etc.) This 2012 law was the result of a bipartisan compromise reached between Republicans managing the underlying legislation who wanted to completely lift this prohibition and Democrats who wanted to maintain the prohibition.  Prior to 2012, federal law had been interpreted to prohibit states from imposing drug testing requirements on unemployment insurance applicants.

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US News and World Report

House GOP Reopens Push to Drug Test the Unemployed; A vote is expected this week as one congresswoman prepares to resume her push to drug test the wealthy. By Steven Nelson | Staff Writer

Many Americans without jobs may be required to pass a drug test or lose short-term unemployment insurance payments as a result of legislation from congressional Republicans that is set to come up for a vote this week.

The House of Representatives is scheduled to vote as early as Wednesday on a resolution that would nix Obama administration limits on drug testing the unemployed.

Opponents see an expansion of testing as unnecessary, degrading and potentially costing more than it would save. But proponents see it as a way to utilize public funds to enforce work-suitable conduct, benefiting both taxpayers and job-seekers.

Unemployment insurance is a federal-state benefit program that generally allows 26 weeks of pay tied to a beneficiary’s recent job history. It was established in the 1930s and is funded through taxes paid by employers. Historically, it has featured no drug testing.

“In some sense you have been taxed for the benefits, so it’s a little like giving drug tests to people whose houses burned down if they want to collect on their fire insurance,” says Gary Burtless, an economist at the Brookings Institute, describing skepticism of the idea.

The legislation considered this week, House Joint Resolution 42, would strike down a federal rule formalized in August that allows states to test people fired for using drugs or those seeking jobs involving transportation, guns or positions where testing is ordered by law.

The August regulation opened the drug-testing door for the first time since a 2012 law provided the statutory basis, pending Labor Department identification of occupations “that regularly conduct” drug testing, applicants for which would be eligible for tests.

The 2012 legislation was the product of a compromise, with Democrats winning an extension of benefits for the long-term unemployed. At the time, politicians strongly disagreed on the likely scope of testing, foreshadowing the current debate. Some Republicans feel the Obama administration intentionally identified very few occupations.

If successful, the latest measure from Rep. Kevin Brady, R-Texas, and 34 cosponsors would force the Labor Department to craft a different rule. A win also would provide momentum to another Brady bill, the Ready for Work Act, which would explicitly allow states to decide for themselves who among the unemployed should be tested.

Though hard numbers are unclear, a 2011 survey by the Drug and Alcohol Testing Industry Association and the Society for Human Resource Management offers ballpark figures for employers that regularly drug test, with an estimate that 57 percent test all job applicants and that 36 percent perform testing after hiring. A SHRM spokeswoman said it has not performed more recent surveys and DATIA did not respond to an inquiry.

Currently at least three states – Mississippi, Texas and Wisconsin – have laws allowing for unemployment insurance drug testing.

Burtless, who worked at the Department of Labor during the Carter administration, says only recently has the idea of drug testing federal benefit recipients crept from concern about welfare and food stamps to unemployment insurance.

Now, however, the issues have been directly connected by some advocates.

A Valentine’s Day blog post on the website of House Majority Leader Kevin McCarthy, R-Calif., conflates the two.

“Giving states flexibility by overturning this rule has immediate economic benefits. After implementing drug testing, Utah saved more than $350,000 in the first year alone as drug users were barred from receive benefit payments from the taxpayers,” the post says, linking to a 2013 article addressing payments denied to 250 people who failed to meet drug-screening requirements for the Temporary Assistance to Needy Families welfare program, though just 12 Utah applicants had tested positive for drugs.

Both sides have pulled the TANF drug-testing experience into the discussion. A Think Progress review of 10 states with drug testing for TANF in 2015 found about $850,000 in cost to administer drug tests that detected 321 active drug users – with Utah spending nearly $29,000 that year on screening and tests to ferret out 18 drug users.

A paper posted online this month by National Employment Law Project points to the findings and describes the Republican push as “inventing problems that do not really exist, scapegoating the unemployed, and wasting time and money ‘permitting’ states to enact programs that will be struck down by the federal courts as unconstitutional.”

Supporters of additional drug testing, meanwhile, use a traditional welfare-reform pitch.

“As the governor said, we will help our fellow citizen when they are down and out, but public assistance should be a trampoline, not a hammock,” says Tom Evenson, a spokesman for Wisconsin Gov. Scott Walker, the public union-busting Republican who has pushed for the measure.

The resolution is likely to be strongly opposed by Democrats, one of whom last year proposed legislation to drug test wealthy people who claim more than $150,000 in itemized tax deductions to highlight her opposition to drug testing benefit recipients.

“We’ll definitely reintroduce it,” says Eric Harris, a spokesman for Top 1 Percent Accountability Act author Rep. Gwen Moore, D-Wis.

Steven Nelson is a reporter at U.S. News & World Report. You can follow him on Twitter or reach him at [email protected].




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