President Trump Expected to Sign

The U.S. Senate on March 14th voted to approve House Joint Resolution H.J. Res 42 to disallow the regulations adopted by US DOL in August of 2016. The resolution may be viewed at https://www.congress.gov/115/bills/hjres42/BILLS-115hjres42ih.pdf

The Senate vote was along party lines, 51-48.

The regulations have been the subject of concern for a number of years by members of the House Ways and Means Committee, states seeking to implement drug testing and business representatives who recognize the need to assure that UI applicants that claim unemployment compensation are able to work and available to work.

UWC provided support for H.J. Res 42 by letter noting that the regulations included restrictions that were inconsistent with the intent of Congress.

The White House previously indicated that if the resolution to disallow were enacted the President intended to sign it.

If the regulations are disallowed, the new administration will be charged with interpretation and there may be further legislation defining the circumstances under which a state may choose to test UI applicants for the use of controlled substances.

The actual language of the 2012 statute permitting states to test applicants for controlled substances provides:

SEC. 2105. DRUG TESTING OF APPLICANTS.

Section 303 of the Social Security Act is amended by adding at the end the following:

(l)(1) Nothing in this Act or any other provision of Federal law shall be considered to prevent a State from enacting legislation to provide for—

(A) testing an applicant for unemployment compensation for the unlawful use of controlled substances as a condition for receiving such compensation, if such applicant—

(i) was terminated from employment with the applicant’s most recent employer (as defined under the State law) because of the unlawful use of controlled substances; or

(ii) is an individual for whom suitable work (as defined under the State law) is only available in an occupation that regularly conducts drug testing (as determined under regulations issued by the Secretary of Labor); or

(B) denying such compensation to such applicant on the basis of the result of the testing conducted by the State under legislation described in subparagraph (A).

(2) For purposes of this subsection—

(A) the term ‘unemployment compensation’ has the meaning given such term in subsection (d)(2)(A); and

(B) the term ‘controlled substance’ has the meaning given such term in section 102 of the Controlled Substances Act (21 U.S.C. 802).’’.