Notice & Comment

DOL Proposes Drug Testing for Unemployme​nt Compensati​on Applicants, by Shannon Allen

The Employment and Training Administration (“ETA”) of the U.S. Department of Labor (“Department”), proposed a controversial new rule for the Federal-State Unemployment Compensation Program.  The purpose of the proposed regulation (§ 620.1) is to implement section 303(l)(A)(ii), Social Security Act (“SSA”), permitting the drug testing of Unemployment Compensation (“UC”) applicants for the use of controlled substances where suitable work (as defined under the State’s UC law) is only available in an occupation for which drug testing is regularly conducted.

These proposed rules would implement the Middle Class Tax Relief and Job Creation Act of 2012 (“the Act”) amendments to the SSA and allow States to enact legislation that would permit State Unemployment Insurance (“UI”) agencies to conduct drug testing on UC applicants for whom suitable work is only available in an occupation that regularly conducts drug testing.  Under these situations, States may deny UC to an applicant who tests positive for drug use.  These two explicit situations are:

  • Where the applicant was terminated from employment with the applicant’s most recent employer because of the unlawful use of a controlled substance. (Section 303(l)(1)(A)(i), SSA.); or 
  • Where the only available suitable work for an individual is in an occupation that regularly conducts drug testing.

For State UI program purposes, the Department’s Notice of proposed rulemaking (“NPRM”) seeks to define and regulate occupations that regularly conduct drug testing.

The Department asserts that the proposed regulations: will impact a very limited number of applicants for unemployment compensation benefits; do not have a substantial direct effect on the States or the relationship between the National Government and the States because drug testing authorized by the regulation is voluntary on the part of the State, not required; and do not adversely impact family well-being as discussed under section 654 of the Treasury and General Government Appropriations Act of 1999.

The Department seeks comment on the proposed regulations and specifically encourages comments on methods to refresh the list of occupations that regularly drug test. Comments must be submitted in writing on or before December 8, 2014.  Interested parties may submit comments, identified by Regulatory Information Number (RIN) 1205-AB63, by only one of the following methods:

  • Federal e-Rulemaking Portal: Follow the Web site instructions for submitting comments; OR 
  • Mail and hand delivery/courier: Written comments, disk, and CD-ROM submissions may be mailed to Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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