Why Drug Testing For Unemployment And Welfare Benefits Is Wrong

“Neither being unemployed nor applying for unemployment insurance is, by itself, a legally sufficient reason under the Constitution to subject a citizen to government-operated drug testing. ” – National Employment Law Project

Congress is moving forward on a resolution to allow states to expand the use of drug-testing for unemployment insurance recipients. It’s the latest advance in the government’s creeping intrusion into more citizens’ privacy, justified by war on drugs hysteria, with little to no grounding in real-world problems and solutions.

Unemployment Checks Are Not A ”Benefit”. They’re “Insurance”

Notice I didn’t write unemployment benefits. Your unemployment insurance is not a hand-out from the government. That unemployment check is not something you’re taking from other hard-working Americans.

As the National Employment Law Project puts it (emphasis mine):

Unemployment insurance is a state-federal program created by the Social Security Act of 1935. Workers who are involuntarily unemployed qualify for insurance that is paid from state UI trust funds that are funded by taxes on employee wages. To be eligible for unemployment insurance under any state UI law, involuntarily unemployed workers must have earned sufficient wages in their recent work history (the “base period”) and be able to work, available for work, and actively seeking work. Since the advent of employee drug testing in the 1980s, no state had implemented a requirement that claimants must pass a drug test in order to qualify for UI.

In other words, the government forced you to put some of your wages into a piggy bank in case you lose your job. Now, it wants you to pass a piss test to get your own money back.

As NELP explained, you got the money back out of your piggy bank when you lost your job, just as the government promised, since 1935. For 77 years, the government kept that promise.

Then, in 2012, Congress passed and President Obama signed the Middle Class Tax Relief and Job Creation Act. It amended the Social Security Act of 1935 so that when middle class folks lost their jobs and went to the piggy bank for relief, they had to pass a piss test if they’d been fired over a drug charge or could only work in occupations that piss test.

Defining which class of workers could be cheated out of their unemployment insurance resulted in a proposed rule by the Obama Administration’s Department of Labor in 2014, which was finalized in August of last year. It defined those occupations as work where piss testing is required by law or requires being armed, driving, piloting, controlling air traffic, and conducting trains. It also clarified that states couldn’t charge the worker for the cost of the piss test they used to justify stealing his unemployment.

Mandating Drug Tests For Unemployment, Even If The Job You Seek Doesn’t

The House just voted to rescind that rule. It is expected that some version of the Ready to Work Act of 2016 will be submitted to the 115th Congress. In addition to terminating for good the Obama-era’s narrow definition of workers whose money can be stolen over failed piss tests, it would amend the Social Security Act so that the occupations that qualify for unemployment theft are “determined by the State.”

When President Obama’s Labor Department proposed the rule, House members who argued against it wailed that it restricted the states from robbing the largest possible group of unemployed workers. The rule eliminates “the possibility that states could use drug screening and testing” for the occupations “beyond those that are required by law to conduct drug testing,” they wrote, seeking to steal from all workers who’d seek jobs with firms “committed to having a drug-free workplace.”

Since the Drug-Free Workplace Act of 1988 mandates that any employer can’t receive any federal contracts or grants unless it “agrees to provide a drug-free workplace”, that significantly expands who could be piss tested. This is particularly vexing, as the DFWA doesn’t mandate piss testing as a requirement of a so-called drug-free workplace.

The unemployment thieves also wrote that President Obama’s rule “would inappropriately limit drug screening and testing” by interfering with “states that already have enacted laws that permit and encourage employers to conduct drug testing that are not based on occupations…”

They want the states to have the right to steal unemployment insurance from any worker they choose on the basis of a failed piss test.

We all know that piss tests discriminate against cannabis consumers, since its metabolites are detectable in periods measured in days and weeks, while hard drugs’ metabolite detection windows are measured in hours. In turn, that incentivizes the use of synthetic cannabinoids of dubious safety, hard drugs that dissipate rapidly, or alcohol that isn’t tested for.

Thus, piss testing for unemployment insurance is simply an extra-judicial way to punish cannabis consumers.

The Pretzel Logic Of Punitive Piss Testers

The reasoning offered by the proponents of this legalized theft is flimsy. House Majority Leader Kevin McCarthy writes that “People who are abusing drugs may fail job-related drug tests, meaning they are not truly available for employment.”

But the person applying to receive his unemployment insurance was someone who was employed. Presumably, if their employer piss tests, they passed that test already. If they’re seeking a job that piss tests, why add another one? If their desired job doesn’t require one, why require a test at all? Why do we need an unemployment piss test to determine whether someone can pass an employment piss test?

Because without it, we might be subsidizing some unemployed person’s drug use, they think. It’s a moral issue.

Rep. McCarthy believes “states should have the option of disallowing them for unemployment benefits and ending public support for their self-destructive habits.” His motivation is to stop people who are actively using drugs from collecting their own unemployment insurance.

But “twenty states explicitly deny benefits for any job loss connected to drug use or a failed drug test” and the rest of the states implicitly consider drug-related firings as “disqualifying conduct,” according to NELP.

Meanwhile, the silence is deafening if you’re listening for calls to deny unemployment insurance to beer drinkers. Apparently, we taxpayers can subsidize that self-destructive habit (and once again – unemployment insurance isn’t a subsidy, it’s insurance you paid into.)

Drug Testing For Public Benefits Is A Wasteful Failure

Rep. McCarthy also believes this expansion of piss testing for unemployment would save taxpayers money, arguing that “After implementing drug testing, Utah saved more than $350,000 in the first year alone as drug users were barred from receive [sic] benefit payments from the taxpayers.”

But a closer reading of that Utah case shows that it was testing for welfare benefits, not unemployment, and that Utah spent $30,000 and got back just 12 positive piss tests as a result. The claim of $350,000 savings was based on not providing welfare benefits to 250 applicants who didn’t complete the screening process and hadn’t been piss tested, assuming they all must have been on drugs and were scared off by the piss test they couldn’t pass.

Ignore for the moment that’s a US Congressman celebrating 250 impoverished Utahns not receiving the assistance they desperately need. If Rep. McCarthy’s going to count people 250 people who didn’t finish applying for welfare as “savings”, why not count, say, 1,000 people who didn’t apply at all? Or why not make it 10,000, since we have no way to prove how many people don’t do something and why they didn’t? That would be more impressive than dividing $350,000 by 250, taking the result and multiplying by 12, and discovering that Utah spent $30,000 in piss tests to save $16,800 in welfare.

This is the norm in drug testing for welfare, as ThinkProgress notes, “the 10 states that now have these programs in place… spent another $850,909.25 on the testing regimes in 2015 to uncover just 321 positive tests — in more than one state, none at all.” NELP adds that those 321 positives came at “a cost of nearly $2,650 per positive test.”

Furthermore, poor people applying for welfare “yield positive results at rates substantially below the Centers for Disease Control and Prevention’s estimate of an 8.5 percent drug-use rate in the general population,” writes NELP. In other words, Rep. McCarthy and other unemployment piss-test promoters have a solution in search of a problem.

That’s not to say there aren’t any welfare or unemployment applicants who have serious drug addiction (read: not pot) issues. But Rep. McCarthy demonstrates a complete ignorance of how addiction works by claiming that “Limiting benefits for drug users helps the drug user the most. While states and welfare programs can’t make people’s decisions for them, giving unemployment insurance only to those who stay clean provides a great incentive for people to stop using drugs.

People with addiction issues don’t make rational decisions based on great incentives. What do you suppose are the next acts of the person addicted to heroin who is jobless and lacking unemployment insurance, following eviction for not paying rent, hungry and homeless and wracked by all-consuming withdrawals that demand she score some more money to buy some more heroin?

As for the pot smoker popped for a positive piss test, what good do we accomplish by denying her unemployment insurance? Assuming that’s the approach that makes her quit smoking pot, it’s still going to take her another couple of weeks before she can even apply for jobs that drug test. It’s not as if she got thirty-days notice she’d be laid off and could stop smoking pot in advance of an unemployment piss test.

“But I Have To Piss Test For My Job!”

One frustrating aspect of this unemployment piss testing issue is employed workers, even cannabis consumers, asking “if I have to take a piss test for my paycheck, then why shouldn’t you have to take a piss test for your unemployment check?”

The solution to your oppression is not to expand it to those weaker than you. The question you should be asking is “why do I have to take a piss test for my paycheck?” You’re an American with a 4th Amendment right that prevents the government from conducting unlawful searches of your body. Your employer gets away with requiring a piss test because our courts have decided that being an employed worker is a voluntary contract between you and an employer. You have no right to be employed under the Constitution and the government isn’t requiring a search, your employer is.

This is why piss testing isn’t allowed for non-safety-related government jobs, why schools can only piss test students involved in extra-curricular activities or driving to school, and why states that drug test for welfare have to start with a screening test that identifies applicants at-risk for drug use. Those all involve government intrusions on your 4th Amendment rights.

As NELP so perfectly summarizes, “Neither being unemployed nor applying for unemployment insurance is, by itself, a legally sufficient reason under the Constitution to subject a citizen to government-operated drug testing.” Call your representative today and tell them you oppose all expansion of drug testing in America, especially to legalize the theft of our hard-earned unemployment insurance.


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