State unemployment agencies will be permitted to conduct drug testing on applicants for whom suitable work is available only in an occupation that regularly conducts drug testing as determined under DOL regulations.
The Labor Department has issued a final rule permitting states to require unemployment compensation (UC) applicants to take drug tests and to identify occupations that the Secretary of Labor has determined regularly conduct drug testing. The final rule will be effective 30 days after its publication in the Federal Register on October 4.
Drug testing for UC applicants. The final rule implements the Middle Class Tax Relief and Job Creation Act of 2012 (JCA) amendments to the Social Security Act (SSA), permitting states to enact legislation that would allow state UC agencies to conduct drug testing on UC applicants for whom suitable work (as defined under the state law) is available only in an occupation that regularly conducts drug testing (as determined under regulations issued by the Labor Secretary).
“Not substantially the same as” old rule. The SSA requires that the Secretary promulgate regulations determining those occupations that regularly conduct drug testing. These latest regulations succeed a final rule issued on August 1, 2016, that Congress rescinded under the authority of the Congressional Review Act (CRA). According to the DOL, the regulations under this latest final rule are not substantially the same as those in the rescinded final rule, as required under the CRA.
Clarity and flexibility. The final rule says it recognizes states’ diverse situations by permitting—but not requiring—them to test UC applicants for whom suitable work is only available in an occupation where drug testing is regularly conducted, the DOL explained. In addition to the particular occupations identified in the regulation, states can identify others in which employers conduct drug testing as a standard eligibility requirement for obtaining or maintaining employment in that occupation in their state.
While the final rule also maintains that any occupation listed in the rescinded 2016 final rule is among those that are drug tested “regularly,” it provides new flexibility to states to also identify such occupations, the DOL said.
Regularly drug-tested occupations. The final rule sets forth the occupations that regularly conduct drug testing for purposes of determining which applicants may be drug tested when applying for state UC. When states elect to test UC applicants pursuant this aspect of the final rule, the states may enact legislation to require drug testing for applicants for whom the only suitable work is in one or more of the following occupations that regularly conduct drug testing:
- An occupation that requires the employee to carry a firearm;
- An occupation identified in 14 CFR 120.105 by the Federal Aviation Administration, in which the employee must be tested;
- An occupation identified in 49 CFR 382.103 by the Federal Motor Carrier Safety Administration, in which the employee must be tested;
- An occupation identified in 49 CFR 219.3 by the Federal Railroad Administration, in which the employee must be tested;
- An occupation identified in 49 CFR 655.3 by the Federal Transit Administration, in which the employee must be tested;
- An occupation identified in 49 CFR 199.2 by the Pipeline and Hazardous Materials Safety Administration, in which the employee must be tested;
- An occupation identified in 46 CFR 16.201 by the U.S. Coast Guard, in which the employee must be tested;
- An occupation specifically identified in federal law as requiring an employee to be tested for controlled substances;
- An occupation specifically identified in the state law of that state as requiring an employee to be tested for controlled substances; and
- An occupation for which the state has a factual basis for finding that employers hiring employees in that occupation conduct pre- or post-hire drug testing as a standard eligibility requirement for obtaining or maintaining employment in the occupation.
“The flexibility offered in the new rule respects state differences with regard to employment drug testing across our country,” Assistant Secretary for Employment and Training, John Pallasch, said in a statement. “This rule lays out a standard that states can individually meet under the facts of their specific economies and practices.”
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