On March 14, 2017, the U.S. Senate approved House Joint Resolution 42, which earlier passed in the U.S. House of Representatives and blocks the U.S. Department of Labor’s (DOL) regulation limiting states’ ability to drug test unemployment benefit applicants. Once the 2016 resolution is finalized, states will no longer be limited by the regulation’s narrow definition of which occupations regularly conduct drug testing. The president is expected to sign the resolution soon.

Background

Under the Middle Class Tax Relief and Job Creation Act of 2012, states are permitted to drug test and deny benefits to unemployment applicants that were either (1) discharged from employment because of the unlawful use of a controlled substance, or (2) work in an occupation that regularly conducts drug testing. A regulation (20 C.F.R. Section 620) was enacted under the previous administration that enumerated the specific occupations that “regularly conduct drug testing.” By listing only eight categories of occupations as “regularly conducting drug testing,” the regulation limited states’ ability to drug test for unemployment benefits. Thus, some found the regulation too narrow and limiting on states’ rights.

Implications

Once signed, the DOL will be tasked with redefining which occupations are considered to regularly conduct drug testing. However, the Congressional Review Act, which was used to pass this resolution, stipulates that any replacement regulation cannot be too similar to the resolution that was overturned. In the meantime, some states may use the deregulation period to implement more aggressive drug testing policies regarding unemployment applicants.

While waiting for the DOL to issue new regulations, employers may want to review their drug testing policies for compliance under applicable state laws and keep in mind that some states provide specific requirements for employers to be able to use a failed drug test as an affirmative defense to an application for unemployment benefits.