Tomorrow, the House of Representatives is expected to vote to roll back a Department of Labor regulation that protects people who apply for Unemployment Insurance (UI) from unnecessary drug testing. It’s a not-so-subtle attack on the character of unemployed Americans, rooted in stereotypes that blame workers for job loss.
Congress has already agreed to allow states to test UI claimants in two specific, narrow circumstances: if a worker was fired from their previous job because of drug use, or if the worker is looking for a new job in a field that regularly drugs tests employees. But since the Great Recession, some states have been clamoring to expand drug testing for UI applicants—they believe that they’d be able to shrink the program as workers test positive for drugs, or that workers would decline to apply for benefits because of their drug use. Despite the complete absence of data to support this theory, three states—Texas, Mississippi, and Wisconsin—have enacted laws that permit the drug testing of UI recipients (though they have all held implementation until the Labor Department rule was finalized).
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Lawmakers aren’t just hoping to roll back the Labor Department rule. They’re also counting on passage of a bill introduced in the 114th Congress by Rep. Kevin Brady (R-TX) that would effectively allow states to drug test all jobless workers filing for unemployment insurance.
Here are five reasons that shouldn’t be allowed:
1. It’s unconstitutional
Drug tests have historically been considered searches for the purposes of the Fourth Amendment. For searches to be reasonable, they must be based on “individualized suspicion.” That means the government would need to have a specific reason to believe that each person they drug tested was doing drugs. Otherwise, it’s like conducting a search without a warrant.
The only exception to this rule has been if the government can show there is a special need, such as public safety, that warrants it.But governmental programs like Unemployment Insurance, TANF, SNAP, and housing assistance do not naturally evoke the special needs exceptions that the Supreme Court has recognized in the past.
2. It’s redundant
Twenty states already explicitly deny people UI benefits if they lost their job because of drug use or a failed drug test. In addition, virtually all states treat a drug-related discharge as disqualifying misconduct even if it is not explicitly referenced in their discharge statutes. Adding an additional regulation when state regulations are already accomplishing this task would add to the bureaucracy that this administration has vowed to reduce.
3. It’s expensive
Creating a new qualifying requirement for UI would be very expensive, and federal law prohibits states from making potential beneficiaries pay for drug tests. States would have to absorb the cost of drug testing thousands of unemployed workers, and UI programs are already too under-funded and under-staffed. Though there are no comprehensive estimates of how much this would cost, when Texas was considering drug testing UI applicants a few years ago, it was estimated to cost $30 million per year. In FY 2012, federal funding fell short of covering states’ administrative expenses by an estimated $231 million.
4. Workers have already paid for access to the program
Unemployment Insurance is funded through payroll taxes. Workers earn that benefit over the course of their career—and they don’t have access to it unless they lose their job and are working to find a new one.
5. It’s based on negative stereotypes, not data
This attempt to violate the privacy of every American who is unlucky enough to lose a job is rooted in a blanket assumption that the ranks of the unemployed are crowded with lazy drug abusers. However, there is no evidence to support this claim. When states have attempted similar drug-testing initiatives in the past, only a small fraction of recipients—less than one half of one percent—actually tested positive (and finding that small group of people cost hundreds of thousands of dollars).
Realistically, two-thirds of Americans will struggle with unemployment at some point during their careers. Imposing an expensive, ineffective, and unconstitutional new obstacle to a program that most of us will need doesn’t actually solve anything.