Monday, May 20, 2013

Drug Testing For Unemployment Subsidies

The Texas state Senate passed SB 11, a bill to initiate drug testing for food stamps and other government assistance programs. The bill is set for a floor vote in the Texas House in the near term.

A second senate bill, SB 21 takes drug testing a step further. The bill sets conditions for requiring  that testing. If the person seeking unemployment subsidies is in a field whose employers routinely require drug testing as conditions for employment, the unemployment office will also conduct testing as part of eligibility screening for those subsidies.

The gist of the bill indicates that if the applicant's former employer conducts drug tests, the unemployment office will follow suit.

(a)  The commission by rule shall adopt a drug screening and testing program as part of the requirements for the receipt of benefits under this subtitle by an individual to whom Section 207.021(b-1) applies. The program must: 
             (1)  comply with the drug testing requirements of 49 C.F.R. Part 382 or other similar national requirements for drug testing programs recognized by the commission; and 
             (2)  be designed to protect the rights of benefit applicants and recipients.

A positive, or suspicious result of a drug test could mean denial of unemployment benefits. The applicant may return 4 weeks or more later and re-apply. That application will include a subsequent drug test.

An individual whose drug screening assessment indicates a reasonable likelihood of use by the individual of a substance subject to regulation under that chapter must submit to and pass a drug test administered by or on behalf of the commission to establish the individual's eligibility for benefits under this subtitle.  An individual who is determined to have failed a drug test under this subsection under a final determination or decision made by the commission under this section is not eligible to receive benefits under this subtitle until the individual has passed a subsequent drug test administered by or on behalf of the commission not earlier than four weeks after the date the individual submitted to the failed drug test.

Positive results from a drug test are not an automatic disqualifying factor, though. There are certain mitigating aspects and appeals. For instance, if the applicant is enrolled in a drug rehabilitation program, they may, under certain circumstances, still receive unemployment benefits.

      (c)  Notwithstanding Subsection (b), an individual is not disqualified from receiving benefits based on the individual's failure to pass a drug test if, on the basis of evidence presented by the individual, the commission determines that: 
             (1)  the individual is participating in a treatment program for drug abuse; 
             (2)  the individual enrolls in and attends a treatment program for drug abuse not later than the seventh day after the date the individual receives initial notice of the failed drug test result; or 
             (3)  the failure to pass the test is caused by the use of a substance that was prescribed by a health care practitioner as medically necessary for the individual. 
       (d)  The commission by rule shall prescribe procedures for an appeal and the retaking of a failed drug test by an individual under this section.

If the applicant appeals and the initial test is deemed to have been a "false positive", then the Texas Workforce Commission must reimburse the applicant the costs of the tests.

             (2)  full payment by the commission of the costs of the retaking of failed drug tests by any individual who contests the individual's failed drug test as a false positive result and passes a subsequently taken test.
SB 21, drug testing to receive unemployment benefits, faces a Texas House vote some time this week. The full text of the engrossed bill sent to the House is available at this link.