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Gray – Jobless Drug Testing Q&A

Patricia Gray

Aug. 30, 2013 -- Senate Bill 21, passed in the last regular legislative session and effective Sept 1, amends the Labor Code to require drug screening and testing for certain individuals before they can receive unemployment insurance (UI) compensation benefits. Employers pay into the UI Trust Fund which pays the employee UI compensation benefits.  Job loss alone does not qualify someone for UI benefits.  Individuals who have lost employment through no fault of their own must meet additional criteria that include employment for a defined minimum period of time, meeting a defined wage base, maintaining an active search for and being available to work full time, and applying for and accepting full time “suitable work” as that aspect is determined by the Texas Workforce Commission. A report from the Center for Public Policy Priorities estimates that fewer than one in five unemployed Texans actually collect UI benefits. Patricia Gray, director of research at the Health Law and Policy Institute at the University of Houston Law Center and a former state legislator, answered questions about the drug testing law.

 Q.) Who will be tested under the new law?

It is not clear exactly who will be subject to testing under the new law.  SB 21 limits testing to those individuals for whom “suitable work” means employment “in an occupation defined by United States Department of Labor regulation as an occupation that regularly conducts pre-employment drug testing”. However, PL 112-96, the federal legislation authorizing states to conduct drug testing to determine eligibility for UI benefits directs the state to determine which occupations traditionally conduct pre-employment drug testing, and requires that any drug testing for UI eligibility determination be done in accordance with standards set by the Department of Labor. Bill analysis offered during the legislative session suggested that such occupations would be found in industries such as trucking and aviation. 

 Q.) What is the rationale behind the new law?

Since individuals are required to maintain availability to accept “suitable work,” the law presumes that someone who would have to pass a pre-employment drug screening test is not available for suitable work if (s)he cannot pass a UI eligibility drug screening and drug test.

Q.)  What is the controversy about the law?

Opponents argue that the law adds an unfair taint to those who have lost their jobs through no fault of their own.  Under existing law, applicants are not eligible for UI benefits if they lost their employment because of illegal drug use.  In addition, only a defined group of applicants would be subject to the requirement for testing in order to receive UI benefits, but all employers will be subsidizing the testing program for the benefit of a limited number of employers.  Finally, there is no data to suggest that people applying for other government assistance programs’ benefits are any more likely than the general population to be drug abusers, and thus there is no reason to believe applicants for UI benefits are predisposed to substance abuse.

Q.) Have other states adopted similar statutes?  What have the results been?

According to the National Conference of State Legislatures, there are now nine states, including Texas, that have adopted a drug testing requirement in order to receive UI benefits.  The laws are all relatively new, and only one state has responded to a request for results.  A news report from Georgia indicates one person was successfully identified and denied UI benefits.

Q.) Do you foresee all UI applicants having to pass drug screening and testing in the future?

There is certainly a trend toward testing applicants for government assistance programs.  In addition, human resources management organizations report that about half of all employers now require pre-employment drug screening even if the job does not fall within the list of occupations defined by the Department of Labor.  However, when Congress authorized states to undertake drug testing for determining eligibility for UI benefits, the federal legislation was narrowly drafted to deny benefits only to those who had lost their jobs because of illegal drug use (already disallowed in Texas) or to those who would have to pass pre-employment drug screening to regain suitable employment in occupations identified by the Department of Labor. SB 21 incorporates the safeguards built into the federal legislation. 


Some have argued that this legislation is a solution in search of a problem.  Employers, however, have backed this legislation at both the federal and state level.  The real benefit may be in highlighting the serious problem of substance abuse that exists in our society generally, the lack of affordable treatment options, and the impact of such on maintaining a workforce to build and sustain a strong economy.  The unanswered question is whether using mandated employer contributions for drug screening and testing to determine eligibility for UI benefits is the most efficient and effective use of those resources.

To schedule a media interview with Professor Gray, contact Carrie Criado, Executive Director of Communications and Marketing, 713-743-2184,; or John T. Kling, Communications Manager, 713-743-8298,

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