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Republicans Move to Expand Drug Testing for Unemployment Benefits

Congress is helping Gov. Scott Walker and others expand policies that punish poor people for drug use.

(Photo: Phillipe Delavie; Edited: LW TO)

House Republicans gave Gov. Scott Walker of Wisconsin and other Republican governors a gift on Wednesday: They voted to repeal a Labor Department rule that limited which workers state governments can drug test before handing out unemployment benefits. The vote tally was 236-189, and largely fell along party lines.

Nearly 50 labor and civil rights groups signed a letter arguing that the repeal legislation would allow states like Wisconsin to waste taxpayers dollars on drug testing already performed by employers and punish working families that are trying to get back on their feet. Funding for unemployment insurance generally comes out of workers’ paychecks, so labor advocates argue the benefit is a right, not a privilege earned by testing clean.

“The reality is that people who receive public assistance are no more likely to use illicit drugs than the general population, and these kinds of drug testing programs are a big waste of tax dollars for states to run and defend in court,” said Grant Smith, deputy director of national affairs with the Drug Policy Alliance, in a statement.

Along with the governors of Texas, Mississippi and Utah, Governor Walker applauded the legislation and said in a statement that it would help his state move forward with plans to expand drug testing for those on public assistance. Civil rights and labor groups warn that “suspiscionless” drug testing for public assistance is a waste of money and violates Fourth Amendment protections against unreasonable searches, so programs like Governor Walker’s would likely face expensive challenges in court.

Drug testing people who receive government benefits has long been a popular idea among Republicans. Proponents claim they are seeking to divert taxpayer dollars from the illicit drug trade and compel the workforce to sober up, but opponents say their proposals single out poor people for punishment. Don’t expect the GOP to tack on drug testing requirements for rich CEOs to corporate tax breaks anytime soon.

Plus, mandatory drug testing policies unfairly impact people of color, who are more likely to be criminalized for drug use when tests are positive.

In 2012, Congress passed a law with a bipartisan compromise: States could only drug test workers receiving unemployment benefits if the workers were let go due to unlawful drug use, or if the Labor Department determined that their line of work would require them to be drug tested in order to get a new job. Last year, the department finalized a rule limiting this class of workers to those who are already required to be tested by state or federal law, such as firefighters, pilots and workers who carry firearms.

That ruling was too narrow for Governor Walker and three other Republican governors. Labor and civil rights advocates fear that, if permitted to do so, these governors would mandate the testing of everyone receiving unemployment benefits in their states, even though most states already deny benefits to workers who have received a drug-related discharge. Republicans control the legislatures and the governor’s office in 25 states, so Governor Walker’s model could easily spread.

To repeal the rule on Wednesday, the House used the Congressional Review Act, a dusty 1990s-era law that Republicans have been using to roll back Obama-era regulations with lightning speed. President Trump has said he would sign the bill if it passes the Senate, where Republicans hold a slimmer majority than in the House.

The move disappointed reformers, particularly since some Republicans have embraced more sensible policies in recent years, such as reducing mandatory minimum sentencing for drug crimes and expanding treatment for people with opioid-related disorders.

“It’s disappointing that Republican leadership in Congress is choosing to focus on drug testing people who have lost their jobs rather than helping them,” said Smith, who added that it’s “shameful” for Congress to demonize drug users after embracing rhetoric around helping people with opioid and other forms of addiction.

Perhaps anticipating such a pushback, Governor Walker and House Republicans are now couching their position on drug testing in terms of “helping” workers — a strange position for Walker, who has promoted extreme austerity policies — and treating addiction.

House Majority Leader Kevin McCarthy said that many employers require drug testing for new employees, so testing for unemployment benefits provides an incentive to stay clean and find a job. Governor Walker goes even further, suggesting that his state may require rehab for workers who fail the state-mandated test.

“If someone fails the test, we help them with rehabilitation, so they can get healthy and ready to enter the workforce,” Governor Walker said.

However, most people who use drugs are not addicted to them, and do not need or wish to undergo medical treatment. Marijuana is the most popular illicit drug in the country, but only about 9 percent of users are dependent on the drug. Unfortunately for cannabis users on unemployment in Wisconsin, marijuana can linger in the body longer than most other drugs, making it easier to detect on a drug test.

It’s well known that poor people and people of color have suffered disproportionately in the war on drugs, and targeting recipients of public benefits for state-mandated drug testing and rehab would only continue this trend. Wealthy people who use drugs can choose if, when and where they receive treatment for addiction or other problems, while low-income people may have few options besides public facilities that often mimic prison.

A casual marijuana user may refrain in order to receive public benefits, but a worker with an opioid abuse disorder, perhaps stemming from painkillers prescribed legally after a workplace accident, does not have this option. Still, advocates note, that worker should have the right to decide with their doctor how to handle the condition instead of being coerced by a state government threatening to take away their livelihood. Why? They earned it.

Unemployment insurance is supposed to provide a portion of a worker’s salary during job shortages so they can find another job while still supporting themselves and their families. Unemployment programs are funded by payroll taxes, the cost of which are passed down by employers to their workers in the form of lower wages, so advocates argue that workers have earned the benefit, whether they use drugs or not.

With mandatory drug testing and rehab hanging over their heads, some people who are already struggling with serious challenges would lose their main source of income, should this bill become law. In fact, many people might forgo applying for unemployment benefits altogether to avoid being criminalized and forced into rehab.

This may be what Republicans are really after. Representative McCarthy points out that Utah “saved” $350,000 because drug users were “barred” from receiving certain welfare benefits, but his statement is not accurate. The Utah program did not bar drug users from receiving benefits, but it did require applicants to complete a written questionnaire about drug use and to be tested for drugs if ordered. Rehab was mandatory if they tested positive.

A total of 250 people lost benefits after failing to comply with Utah’s requirements, but that doesn’t mean they were using drugs. They could have missed an appointment or simply refused to provide such personal information about their bodies to the state. Only 12 actually tested positive for drugs.

Governor Walker and Representative McCarthy may be eager to kick people off the government dole, but unemployment insurance is a benefit largely paid for by workers themselves. Requiring them to be drug tested for it is another piece of red tape that could prevent people from accessing badly needed support. Drug testing may save Wisconsin a little bit of money, but it’s a rip-off for workers.

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