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CCH® UNEMPLOYMENT INSURANCE — 10/30/14

DOL proposes new rules establishing appropriate occupations for drug testing of UI claimants

The Employment and Training Administration (ETA) of the U.S. Department of Labor (DOL) proposes to establish in regulation for state Unemployment Insurance (UI) program purposes occupations that regularly conduct drug testing. These regulations would implement the Middle Class Tax Relief and Job Creation Act of 2012 (the Act) amendments to the Social Security Act, permitting states to enact legislation that would allow their UI agencies to conduct drug testing on unemployment compensation (UC) claimants for whom suitable work (as defined under state law) is only available in an occupation that regularly conducts drug testing (as determined under regulations issued by the Secretary of Labor (Secretary)). States may deny UC to a claimant who tests positive for drug use under these circumstances. The Secretary is required under the Social Security Act to issue regulations determining those occupations that regularly conduct drug testing. Comments on the regulations must be submitted in writing on or before December 8, 2014.

Background

On February 22, 2012, President Obama signed the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. No. 112-96). Title II of the Act amended Section 303 of the Social Security Act to add a new subsection (l) permitting states to drug test UC claimants as a condition of UC eligibility under two specific circumstances. The first circumstance is if the applicant was terminated from employment with his or her most recent employer because of the unlawful use of a controlled substance (Section 303(l)(1)(A)(i)). The second circumstance is if the only available suitable work (as defined in the law of the state conducting the drug testing) for an individual is in an occupation that regularly conducts drug testing (as determined in regulations by the Secretary). A state may deny UC to a claimant who tests positive for drug use under these circumstances (Section 303(l)(1)(A)(ii)). The proposed rule defines those occupations that regularly conduct drug testing as required by Section 303(l)(1)(A)(ii). The DOL will, separately from this rulemaking, issue further guidance to states to address other issues related to the implementation of drug testing under Section 303(l) of the Social Seurity Act.

Consultation with other federal agencies

The DOL consulted with a number of federal agencies with expertise in drug testing to gain information for the proposed regulation. Specifically, it consulted with the Substance Abuse and Mental Health Services Administration (SAMHSA) in the U.S. Department of Health and Human Services (HHS); the U.S. Department of Transportation (DOT); the U.S. Department of Defense (DOD); the U.S. Department of Homeland Security (DHS); DOL's Bureau of Labor Statistics (BLS); and DOL's Occupational Safety and Health Administration (OSHA). These agencies were consulted because they have experience with required drug testing. The DOD and the DHS defer to SAMHSA for interpretation of drug testing requirements. Therefore, the DOL gave deference to the SAMHSA guidance when developing the rule. The DOL also canvassed state laws to develop an understanding of what occupations require regular drug testing at the state level.

For further information

For further information, contact Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Ave. N.W., Room N-5641, Washington, DC 20210; telephone (202) 693-3700 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339 (see 79 Fed. Reg. 61013, October 9, 2014).