Governor Rick Perry (R) of Texas has approved legislation that will require applicants for unemployment insurance to face state-administered drug tests as a condition of receiving benefits.  S.B. 21 takes effect on September 1, 2013, but it would apply to claims filed with the Texas Workforce Commission beginning February 1, 2014.  In signing the bill on June14, Governor Perry emphasized, that while Texans stand ready to help one another in times of need, through its unemployment insurance program, “Texas is also a state where personal responsibility is very important and recipients of unemployment benefits have a responsibility to be prepared to work when an opportunity presents itself.”  Taking illegal drugs when testing is required for employment in a chosen career, he said, is inconsistent with that objective.

The bill provides that an individual for whom suitable work is available only in an occupation that regularly conducts pre-employment drug testing will be deemed available for work (and, therefore, eligible to get benefits) only if the individual complies with the law’s drug screening and testing program, as further described in rules to be adopted by the TWC.

A covered individual who files an initial claim for unemployment benefits will have to submit to and pass a “drug screening assessment” (written questionnaire) designed to determine the reasonable likelihood that an individual is using a substance regulated by the Texas Controlled Substances Act.  If the TWC makes such a finding, the claimant will have to submit to and pass a state-administered drug test to get benefits.  (An individual who fails the test can take another no earlier than four weeks later.)  Appeals and exceptions are specified in the statute, including an exception for participation in a drug treatment program.

There are several hitches.  First, the TWC must develop regulations to administer the law.  Even then, the new law depends upon the U.S. Department of Labor issuing a list of occupations in which pre-employment drug testing is regularly conducted.  The DOL was charged with producing such a list under the Middle Class Tax Relief and Job Creation Act of 2012, which amended the Social Security Act to allow state unemployment insurance programs to conduct applicant drug testing as Texas law is intended to provide.  But the DOL has not done so, although it reportedly expected regulations would be ready by this May.

Just how many occupations will be covered by the DOL regulations is another question.  A TWC spokesperson said she anticipates at this time “a few limited occupations in healthcare and transportation may be impacted,” but she said the TWC would have to await DOL guidance as to other fields.  Survey data from The Society for Human Resource Management (SHRM), commissioned by The Drug and Alcohol Testing Association (DATIA), suggest pre-employment drug testing is widespread, but in forging the Tax Relief Act, some Democratic lawmakers said they expected the DOL list would be a narrow one.