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Texas still poised to drug-test unemployment seekers

March 24, 2016
by Gary A. Enos, Editor
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Texas legislators three years ago formalized their intent to subject some applicants for unemployment benefits to drug testing, but a testing program still has not gotten off the ground. Officials with the Texas Workforce Commission cannot proceed to establish drug screening protocols for the program until the U.S. Department of Labor issues final regulations governing the process. So far, all the state has heard is that the federal rule is scheduled to be issued sometime this year.

The key component in regulations will involve which occupations will be targeted in the testing, as only a small percentage of Texas applicants for unemployment benefits are expected to have to undergo testing in order to qualify for unemployment benefits.

“Not every [unemployment insurance] claimant will be impacted,” says Lisa Givens, spokesperson for the Texas Workforce Commission. “What we anticipate at this time is that a few limited occupations in healthcare and transportation may be impacted.”

Once the federal guidance on which occupations can be subject to testing is issued, state officials can proceed to devise a mandated pre-screening questionnaire that will determine which individuals can actually be administered a drug test. “So it's a limited group of individuals as determined by the [Department of Labor] occupations guidelines, and from among that group a limited number would be subject to drug testing,” says Givens.

State leaders appear committed to the idea that drug testing should be included in the decision-making process around some applications for unemployment benefits. “Once it is fully implemented, this law would enable another tool for the agency to ensure those who are receiving unemployment insurance benefits are in fact ready to work,” says Givens. “If someone is taking illegal drugs, that person may not be ready and available to return to work.”

Growing lawmaker interest

The Texas law that was adopted in 2013 reflects a growing interest among legislators in some states in requiring drug tests of applicants for (or current recipients of) public benefits. Most of this has targeted welfare (Temporary Assistance for Needy Families; TANF) applicants. While federal law governing TANF gives states significantly more leeway to test benefit applicants than is the case for some other federal benefit programs, some recent data from states that have opted for testing TANF applicants call into question the usefulness of such policies.

In both North Carolina and Tennessee, state leaders have observed that a very small percentage of tested welfare applicants have tested positive for drugs since the measures' implementation. The North Carolina Department of Health and Human Services told state legislators in February that only around 2% of all applicants in the period between August and December of last year were tested (based on preliminary screening that leads to testing in suspected cases of illegal drugs being used). Furthermore, less than two dozen of those individuals actually tested positive.

These results have had civil-liberties groups calling for the testing to be reconsidered, saying that the requirement unfairly singles out one group of public-aid seekers—a group that the testing is showing does not abuse drugs at rates disproportionate to the general population.

Actions in the courts also have served as a barrier to widespread drug testing of public beneficiaries. Florida saw its attempt to drug test all welfare applicants, regardless of whether suspicion of use exists, struck down at the federal court level in 2014. Wisconsin's effort to initiate testing in the Supplemental Nutrition Assistance Program (SNAP) has remained in limbo because of a dispute over whether federal statute allows testing in that program.

Next steps in Texas

Once the Labor Department develops its final regulations, Texas officials will be able to proceed with their own rulemaking process that will establish protocols for a screening and testing program, says Givens. The specific technologies and vendors that the state will use will be determined in that rulemaking process, she says. The chosen vendor will have to comply with already issued federal standards for testing procedures.

While state officials wait for the additional federal guidance, “We have been continuing some preliminary work on any possible changes to internal systems and research on tools that we might use for the written drug pre-screening requirement, as well as looking into what contracting would be necessary to address the actual drug testing,” says Givens.

The Texas legislation states that individuals testing positive for illegal drugs would be unable to receive unemployment benefits for at least a month, and would have to be retested before regaining eligibility. Some legislative supporters of the measure believe the lengthy wait for federal guidance indicates that the federal bureaucracy is not eager to enforce this requirement.