Drug Testing for Unemployed Texans is Still Months Away

A decision on a federal rule that will allow Texas to start drug testing certain unemployment insurance applicants under a state law that took effect 200 days ago is still months in the offing, a spokeswoman for the U.S. Department of Labor said Monday.

Texas lawmakers approved Senate Bill 21 last year. It requires certain applicants for unemployment insurance to undergo a drug screening before receiving benefits. But officials at the Texas Workforce Commission, which is charged with implementing the law, have been forced to wait on their federal counterparts to designate which types of professionals will be subject to testing.

A federal law passed in 2012 allows states to drug test certain people who apply for unemployment benefits. But Texas can't draft guidelines for the program without direction from the Labor Department, which must outline the occupations that fall under the federal law for the drug tests.

In January, Diana Petterson, a spokeswoman for the U.S. Department of Labor, said the commission would publish a proposed rule sometime in March. That would begin the rule-making process that would eventually allow the state to conduct drug tests. She said on Monday that the issuance of a final rule “is a long process and still several months away.”

Under the Texas law, some applicants were scheduled to be subject to a new drug screening procedure Feb. 1. But without federal guidance, TWC has been in a holding pattern. In the meantime, said TWC spokeswoman Lisa Givens, officials have continued researching written prescreening tools that will allow them to determine those applicants who should be drug tested. They are also examining similar drug testing programs in other states and working to determine which vendors will provide the prescreening questionnaire and drug test, Givens said.

“The law cannot be fully implemented until further required steps are taken at the federal level,” she said.

Petterson said the rule is at least three months away from becoming final. On March 11, she said, the Office of Management and Budget received the Notice of Proposed Rulemaking, a first draft of the rule, for review. That office has 90 days to examine the material and address issues before it’s published in the Federal Register. The public, she said, will then be invited to comment on the proposed rule. There will be time to review and address the comments before the final rule is issued. Only then will Texas have its guide to begin drug testing.

The delays have some Texas lawmakers and business leaders frustrated. 

"Once again, Washington is hindering our state's progress on conservative economic policy," Lt. Gov. David Dewhurst said in a statement. "They need to get it in gear."

Bill Hammond, president of the Texas Association of Business, who testified in support of the bill last year, said the law’s delay is costing businesses time and money. 

"The Workforce Commission would be in a position of certifying someone who is drug free. That would make them go to the top of the list for consideration for being hired,” Hammond said.

Federal officials have said they are working as quickly as they can to complete the process.

Texas is not waiting alone. Mississippi passed similar legislation in 2012, and Kansas did so in 2013. Both are waiting on federal regulations before starting their testing regimes.