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House Republicans Vote to Expand Drug Testing

February 17, 2017
Urinalysis vial with yellow lid and no year on expiration date.
The US House of Representative approved a resolution this week to expand drug testing for people who apply to receive unemployment benefits.
House Joint Resolution 42 would repeal a Labor Department rule that limits drug testing to two circumstances. Currently, benefits applicants can be tested if they were terminated from their previous job due to illegal use of a controlled substance or if the only available suitable work for an individual is in an occupation that requires drug testing.

As it currently stands, the new bill would mean that anyone who applies for unemployment benefits could face mandatory drug testing, with or without reasonable suspicion of use.

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Unemployment benefits are generally paid by state governments. Funding for those benefits, though, is provided in large part by state and federal payroll taxes levied against employers.

How would this affect residents of legalized states, and medical marijuana patients? It’s hard to say. Recent court rulings have generally favored employers over the rights of employees when it comes to medical or off-hours cannabis use.

Take the case of former Dish Network employee Brandon Coats. He’s a quadriplegic medical marijuana patient from Colorado. When he was fired for testing positive for cannabis on a random drug test (which he told his employer would happen, because of his medical condition), he took Dish to court. The Colorado Supreme Court ruled in the favor of Dish Network. Under Colorado’s Lawful Off-Duty Activities Statute, the term ‘lawful’ refers only to those activities that are lawful under both state and federal law.

“The collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable.”

Judge Stanley Marcus, 11th US Circuit Court of Appeals

The topic of blanket drug-testing has been vigorously debated in Congress over the past few years, particularly when it comes to the question of drug testing welfare recipients. The cost to drug test every welfare recipient is prohibitively expensive, and American taxpayers foot the bill. It has proven to yield underwhelming results.

In 2012, the Middle Class Tax Relief and Job Creation Act was signed into law by Congress to allow the drug testing of those who receive public assistance. Almost immediately, state legislators began crafting bills to drug test those who receive Temporary Assistance for Needy Families (TANF), otherwise known as welfare.

At least 15 state legislatures enacted laws requiring drug tests for welfare recipients, but it’s worth noting that no legalized states enacted such laws. Also worth noting: If the current bill before Congress were to pass the Senate and be signed into law by the President, it would still be up to each state legislature to enact laws requiring drug testing of unemployment recipients. (Last week the White House issued a statement in support of the resolution.)

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The cost of drug-testing unemployment applicants is another question to consider.

After hundreds of thousands of taxpayer dollars were spent on drug tests, the numbers of positive tests were miniscule. ThinkProgress found that $850,909.25 was spent on testing welfare applicants in 2015. Only 321 tests came back with positive results. Several states recorded zero positive tests.

Aside from the exorbitant costs, these laws raise Fourth Amendment questions about the legality of blanket drug testing without reasonable suspicion of drug use.

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In Florida, Luis Lebron, a Navy veteran, refused to submit to a test, arguing that it was unreasonable for him to be drug tested without any reason to suspect him of drug use. The ACLU of Florida filed suit on his behalf and a federal judge overturned Florida’s law in December 2013.

Florida Gov. Rick Scott, who initially signed House Bill 353 into law to require drug screening, appealed the motion. In December 2014, 11th US Circuit Court of Appeals Judge Stanley Marcus wrote an appellate opinion upholding the ruling.

“By virtue of poverty, TANF recipients are not stripped of their legitimate expectations privacy,” Judge Marcus wrote for a three-judge panel. “And the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable.”

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Since the Florida ruling, states that seek to drug test recipients of government assistance now rely on preliminary questionnaires to determine if the applicant meets the criteria for reasonable suspicion of drug use. The Department of Labor was ordered to create its current rule, establishing limits on drug tests applicants for government benefits.

Although the bill easily passed the House, opponents are attempting to block it in the Senate.

More than 50 civil rights, faith, and criminal justice organizations, including the ACLU, the Drug Policy Alliance, Students for Sensible Drug Policy, and the NAACP have signed on to a letter opposing the measure and questioning its constitutionality.

Lisa Rough's Bio Image

Lisa Rough

Lisa is a former associate editor at Leafly, where she specialized in legislative cannabis policy and industry topics.

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  • Larry Davis

    The statement “In 2012, the Middle Class Tax Relief and Job Creation Act was signed into law by Congress to allow the drug testing of those who receive public assistance.” doesn’t make sense. Congress doesn’t sign laws, the president does.

    Still, it reflects the establishment view that all drugs are bad and society shouldn’t support anyone who uses them, except that it’s OK to use oxycodone and other opiates which have a demonstrated seriously debilitating effect on many users. The law reflects complete ignorance of the medical benefits of marijuana which is often self administered for pain relief. Welfare should be given when it truly needed but conservatives believe that you have to live every aspect of your lives according to their principles or else you can rot in the gutters.

    • Mr. V!

      Not trying to be a dick, but the legislative branch, writes, debates, and passes laws. Yes, the president signs, vetoes, or pockets laws (if both houses are in recess for the rest of the year). But if the legislative branch has 2/3s votes, then the president’s signature is in significant!

      Now as far as the subject at hand, I am conservative or perhaps center right and as one who grew up in poverty and my father was a WWII veteran, who would never take a hand out, I went to bed hungry a few times! But as far as this I disagree with. However, thanks to idiots abusing the system, lazy people who don’t need it… What do you expect?? I am almost 50, I was talking to the young kids (25’ish) as I always do, they call me over all the time to bs, like their old uncle I guess. They were bitching about the cops coming over or stopping them. But, as I told them, ‘you young guys in this generation out making noise late, in the neighborhood driving like it’s the dragstrip music blasting, and talking shit to the cops, and Ya’ll wonder why they are always coming by and Ya’ll getting stopped “! Man I’m sorry but today’s generation don’t have much street smarts I guess, hence this stuff from Congress!

      And, as a disabled veteran who the military pushed 10 years ago oxy, vicodin and so on to… I know about pain meds and yes they’re poison. Marijuana is not addictive, physically at least. Try stopping opiates after a couple years or hell 6 months, you’ll find what you are made of!! So I agree but thanks to phones, weaves, strip joints, liquor stores and so on with food stamps/EBT, the abusers are going to cause the good to suffer for the bad, sucks. However, still has to pass the Senate. I don’t see the President veto’ing any bill on it. Hell, I grew up in the 70s and 80s, I’m used to getting smoke the hard way!

  • Colorado Truth

    It is commonly known that many welfare recepients are where most of the supply and demand for illegal drugs comes from. You can’t use drugs and work a job b/c you can’t pass a drug test and you certainly won’t be reliable. If you cut people from welfare due to using illegal drugs, our society would cut off a major avenue of demand for these illegal drugs (no money to buy them) which would in turn force many people to work. How is trying to get people to get a job a bad thing? The problem that nobody has a direct answer for in our country is the continuous “welfare culture” of our society. Generation after generation living, surviving, and having families on welfare. In historically black colleges, they teach their students that it is “the slave mentality” for which none of them can escape or change. Welfare and poverty for life! Why do people get on welfare and then never get off? How to we as a society encourage people to work and provide for themselves? If we can cut into the demand for illegal drugs, hopefully we get better the standard of living for our entire society.

    • J Russell

      commonly known? Do you have any specific figures?I know lots of people who use drugs and work everyday, and i know lots of people who are functional alcoholics. As a truck driver i was subjected to drug tests all the time and i found it very demeaning and useless. Some drugs are difficult to detect. i knew how to beat the test if i had to. My driving record is superb. I just don’t like the double standard. If you are going to drug test, everyone should be tested, otherwise it is discriminatory.

      • Colorado Truth

        Sure, I have figures….b/c every welfare junkie volunteers that criminalizing information at every opportunity! (highly sarcastic)
        They are only wanting to test citizens that receive public assistance. So where is the double standard? If you don’t receive public assistance than you wouldn’t be tested for drugs.

        • J Russell

          It’s discriminatory cos your not testing everybody. Trump should definitely be tested, but if you pick one then you have to do them all. I’d much rather support a junkie on welfare than a junkie who is making laws over me. So if you test one person, you have to test everybody, because of driving, flying, transportation in general, but then doctors, lawyers. Cops should be tested Everybody. it’s my opinion, maybe we’ll agree to disagree. And like i pointed out, i was able to avoid testing positive in drug tests. It’s easy. If he is a junkie, he won’t live long. I’d rather put him in a program to help him. I guess you are specifically talking about the welfare situation, but i think there are lots of people who i wish i knew if they were on something, especially the President, but including all of congress cos their seem priorities seem contrary to.the common people.

          • Colorado Truth

            I don’t share your ideas or ideals. But I respect your opinion and your passion to speak what you believe, b/c as long as we all have enough passion to speak our minds….our country isn’t gone, dead, or beyond fixing.

          • J Russell

            i respect your opinion. I agree with you that handing welfare to drug addicts is wasteful and only enables the habit. Thanks for the civil discussion.

  • J Russell

    What we really need is drug testing for Congress

    • Elizabeth Sibus-Fischer

      AMEN