Donald Trump’s Labor Department is pondering just how many people it can force to be drug tested as a requirement for getting unemployment insurance. Congress previously repealed an Obama administration rule allowing drug testing for unemployment in the limited case of people whose work would require them to be regularly drug tested anyway—pilots, public transit drivers, and other such jobs. Now, the Labor Department wants to allow much more widespread drug testing.
When Congress uses the Congressional Review Act to repeal a regulation, it’s supposed to prevent that regulation from being brought back by executive action, but the Labor Department is trying to craft a rule that will be enough different from the previous one to pass legal muster. Worker advocates are calling foul:
George Wentworth, senior counsel for the National Employment Law Project, said the 2016 rule focused on jobs that conduct random drug screenings, not those that test as a condition of pre-employment.
By extending the rule to cover those jobs, Wentworth argued, the Labor Department would be overstepping its authority under the law.
“We think [Labor] already went through a very thorough and thoughtful process in promulgating the previous regulation that didn’t take Congress long to drop a bomb on, and now where are they going to go?” he asked.
“Anything that broadens the categories of unemployed workers beyond what the statute specified could be subject to a legal challenge.”
Drug testing jobless people isn’t likely to catch many drug users, let alone many people whose drug use is in any way relevant to their ability to work. But it will stigmatize unemployment and add one more routine humiliation to the experience.
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