The US House of Representative approved a resolution this week to expand drug testing for people who apply to receive unemployment benefits.
House Joint Resolution 42 would repeal a Labor Department rule that limits drug testing to two circumstances. Currently, benefits applicants can be tested if they were terminated from their previous job due to illegal use of a controlled substance or if the only available suitable work for an individual is in an occupation that requires drug testing.
As it currently stands, the new bill would mean that anyone who applies for unemployment benefits could face mandatory drug testing, with or without reasonable suspicion of use.
Unemployment benefits are generally paid by state governments. Funding for those benefits, though, is provided in large part by state and federal payroll taxes levied against employers.
How would this affect residents of legalized states, and medical marijuana patients? It’s hard to say. Recent court rulings have generally favored employers over the rights of employees when it comes to medical or off-hours cannabis use.
Take the case of former Dish Network employee Brandon Coats. He’s a quadriplegic medical marijuana patient from Colorado. When he was fired for testing positive for cannabis on a random drug test (which he told his employer would happen, because of his medical condition), he took Dish to court. The Colorado Supreme Court ruled in the favor of Dish Network. Under Colorado’s Lawful Off-Duty Activities Statute, the term ‘lawful’ refers only to those activities that are lawful under both state and federal law.
The topic of blanket drug-testing has been vigorously debated in Congress over the past few years, particularly when it comes to the question of drug testing welfare recipients. The cost to drug test every welfare recipient is prohibitively expensive, and American taxpayers foot the bill. It has proven to yield underwhelming results.
In 2012, the Middle Class Tax Relief and Job Creation Act was signed into law by Congress to allow the drug testing of those who receive public assistance. Almost immediately, state legislators began crafting bills to drug test those who receive Temporary Assistance for Needy Families (TANF), otherwise known as welfare.
At least 15 state legislatures enacted laws requiring drug tests for welfare recipients, but it’s worth noting that no legalized states enacted such laws. Also worth noting: If the current bill before Congress were to pass the Senate and be signed into law by the President, it would still be up to each state legislature to enact laws requiring drug testing of unemployment recipients. (Last week the White House issued a statement in support of the resolution.)
The cost of drug-testing unemployment applicants is another question to consider.
After hundreds of thousands of taxpayer dollars were spent on drug tests, the numbers of positive tests were miniscule. ThinkProgress found that $850,909.25 was spent on testing welfare applicants in 2015. Only 321 tests came back with positive results. Several states recorded zero positive tests.
Aside from the exorbitant costs, these laws raise Fourth Amendment questions about the legality of blanket drug testing without reasonable suspicion of drug use.
In Florida, Luis Lebron, a Navy veteran, refused to submit to a test, arguing that it was unreasonable for him to be drug tested without any reason to suspect him of drug use. The ACLU of Florida filed suit on his behalf and a federal judge overturned Florida’s law in December 2013.
Florida Gov. Rick Scott, who initially signed House Bill 353 into law to require drug screening, appealed the motion. In December 2014, 11th US Circuit Court of Appeals Judge Stanley Marcus wrote an appellate opinion upholding the ruling.
“By virtue of poverty, TANF recipients are not stripped of their legitimate expectations privacy,” Judge Marcus wrote for a three-judge panel. “And the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable.”
Since the Florida ruling, states that seek to drug test recipients of government assistance now rely on preliminary questionnaires to determine if the applicant meets the criteria for reasonable suspicion of drug use. The Department of Labor was ordered to create its current rule, establishing limits on drug tests applicants for government benefits.
Although the bill easily passed the House, opponents are attempting to block it in the Senate.
More than 50 civil rights, faith, and criminal justice organizations, including the ACLU, the Drug Policy Alliance, Students for Sensible Drug Policy, and the NAACP have signed on to a letter opposing the measure and questioning its constitutionality.