2017 removal of UI applicant drug-testing rule

CLASSIFICATION
   EMPLOYMENT AND TRAINING ADMINISTRATION                UI
               ADVISORY SYSTEM                           CORRESPONDENCE SYMBOL
          U.S. DEPARTMENT OF LABOR                       OUI/DL
             Washington, D.C. 20210                      DATE
                                                         May 17, 2017


ADVISORY:       UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 1-15, Change 2

TO:             STATE WORKFORCE AGENCIES

FROM:           BYRON ZUIDEMA /s/
                Deputy Assistant Secretary

SUBJECT:      Removal of 20 CFR Part 620 – Occupations that Regularly Conduct Drug Testing
              for State Unemployment Compensation Eligibility Determination Purposes

1. Purpose. To inform states of the removal of 20 CFR Part 620 – Occupations that Regularly
   Conduct Drug Testing for State Unemployment Compensation Eligibility Determination
   Purposes and the effect on state unemployment compensation (UC) programs. This guidance
   rescinds Unemployment Insurance Letter (UIPL) No. 01-15, Change 1, issued on December
   6, 2016.

2. References.
       Section 303(l) of the Social Security Act (SSA);
       Congressional Review Act, 5 U.S.C. 801 et seq.;
       Section 2105 of Public Law (Pub. L.) No. 112-96, the Middle Class Tax Relief and
         Job Creation Act of 2012 (Act);
       Pub. L. No. 115-17, H.J. Res. 42 - Disapproving the rule submitted by the
         Department of Labor relating to drug testing of unemployment compensation
         applicants;
       20 CFR Part 620 - Occupations that Regularly Conduct Drug Testing for State
         Unemployment Compensation Eligibility Determination Purposes
       Final Rule; Congressional Review Act Revocation – Federal State Unemployment
         Compensation Program; Middle Class Tax Relief and Job Creation Act of 2012
         Provision on Establishing Appropriate Occupations for Drug Testing of
         Unemployment Compensation Applicants, 82 Fed. Reg. 21916 (May 11, 2017);
       UIPL No. 1-15, Permissible Drug Testing of Certain Unemployment Compensation
         Applicants Provided for in Title II, Subtitle A of the Middle Class Tax Relief and Job
         Creation Act of 2012 (October 9, 2014)
       UIPL No. 1-15, Change 1, Permissible Drug Testing of Certain Unemployment
         Compensation (UC) Applicants Provided for in Title II, Subtitle A of the Middle Class
         Tax Relief and Job Creation Act of 2012: Questions and Answers (December 6,
         2016)


 RESCISSIONS                                            EXPIRATION DATE
 UIPL No. 01-15, Change 1                               Continuing

3. Background. Section 2105 of the Act added subsection (l) to section 303, SSA, to permit
   states to enact legislation to test a UC applicant for the unlawful use of controlled substances
   (drugs) as a condition of UC eligibility if the applicant:

       a. Was terminated from employment with his/her most recent employer (as defined
          under state law) because of the unlawful use of controlled substances; or

       b. Is an individual for whom suitable work (as defined under state law) is only available
          in an occupation that regularly conducts drug testing as determined under regulations
          issued by the Secretary of Labor (Secretary).

   On August 1, 2016, the Secretary published the final rule to identify occupations that
   regularly conduct drug testing at 20 CFR Part 620. The rule became effective on September
   30, 2016. On February 15, 2017, the United States House of Representatives passed a
   resolution of disapproval (H.J. Res. 42) of the rule under the Congressional Review Act (5
   U.S.C. 801 et seq.). The United States Senate passed the resolution on March 14, 2017.
   President Trump signed the resolution into law as Public Law No. 115-17 on March 31,
   2017.

   Consistent with the resolution of disapproval, on May 11, 2017, the Department published a
   Final Rule removing 20 CFR Part 620 in the Federal Register. As a result of the removal of
   20 CFR Part 620, states no longer have authority to drug test applicants for UC for whom
   suitable work is only available in occupations that regularly conduct drug testing for
   unlawful use of controlled substances.

4. Interim Impact of the Removal of 20 CFR Part 620. As a result of the removal of 20 CFR
   Part 620, Section 303(l)(1)(A)(ii), SSA, will not authorize states to conduct drug testing of
   applicants for unemployment compensation for whom suitable work is only available in
   occupations that regularly conduct drug testing until the Secretary issues new regulations to
   identify occupations that regularly conduct drug testing. As such, state UC agencies are
   permitted to conduct drug testing only pursuant to Section 303(l)(1)(A)(i), SSA (testing of an
   applicant who was terminated from employment with the applicant’s most recent employer,
   as defined under state law, because of the unlawful use of a controlled substance).

   As a result of the removal of 20 CFR Part 620, the drug testing guidance in UIPL No. 01-15,
   Change 1, which addressed questions regarding drug testing permitted under that regulation,
   is rescinded. UIPL No. 01-15, Permissible Drug Testing of Certain Unemployment
   Compensation Applicants Provided for in Title II, Subtitle A of the Middle Class Tax Relief
   and Job Creation Act of 2012, remains in effect as it provides general guidance about the
   drug testing provisions and specific guidance about the testing permitted by Section
   303(l)(1)(A)(i), SSA. The guidance in UIPL No. 01-15 that is applicable to drug testing
   under Section 303(l)(1)(A)(ii), SSA, will be revised in the future.

   The statute requires that the Secretary issue regulations to identify occupations that regularly
   conduct drug testing in order for states to have the authority to drug test unemployment
   compensation applicants for whom suitable work is only available in an occupation that


   regularly conducts drug testing. Accordingly, the Department will be exploring options for
   implementing this provision of the SSA, including, promulgating a new regulation which
   would include notice and the opportunity for public comment.

5. Action Requested. States are requested to review this UIPL and assure their laws and
   practices conform to and comply with its guidance.

6. Inquiries. Inquiries should be directed to the appropriate Regional Office.

7. Attachment.

   Pub. L. No. 115-17, H.J. Res. 42 - Disapproving the rule submitted by the Department of
   Labor relating to drug testing of unemployment compensation applicants

Attachment (official PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2017/UIPL_1-15_Change_2_Attachment.pdf)

ATTACHMENT
                                                                         Public Law No. 115-17


                                       Joint Resolution

Disapproving the rule submitted by the Department of Labor relating to drug testing of
unemployment compensation applicants.

Resolved by the Senate and House of Representatives of the United States of America in
Congress assembled, That Congress disapproves the rule submitted by the Department of Labor
relating to “Federal-State Unemployment Compensation Program; Middle Class Tax Relief and
Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing
of Unemployment Compensation Applicants” (published at 81 Fed. Reg. 50298 (August 1,
2016)), and such rule shall have no force or effect.