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CCH® UNEMPLOYMENT INSURANCE — 10/31/14

DOL provides issues UIPL 1-15 to provide guidance about permissible drug testing of certain UI applicants

President Obama signed the Middle Class Tax Relief and Job Creation Act of 2012 (Act)(Pub. L. No. 112-96) on February 22, 2012. Section 2105 of the Act adds subsection (l) to Section 303 of the Social Security Act to permit states to test an unemployment insurance (UI) applicant for the unlawful use of controlled substances (drugs) as an eligibility condition if the applicant:

These are the only circumstances under which a state is permitted to require applicants to take and pass a drug test as a condition of initial eligibility for unemployment insurance. An applicant may, if state law provides, be denied UI based on a positive result of this drug test.

Unemployment Insurance Program Letter (UIPL) 1-15 provides general guidance about the drug testing provisions, and specific guidance about the testing permitted by Section 303(l)(1)(A)(i) of the Social Security Act for individuals who were terminated from employment with the most recent employer because of the unlawful use of controlled substances.

As required by the Act, the U.S. Department of Labor (Department) will identify the occupations that regularly conduct drug testing in new regulations. The Department has recently issued a Notice of Proposed Rulemaking seeking comment on a proposed list of such occupations (see 79 Fed. Reg. 61013, October 8, 2014). Further guidance on drug testing permitted by Section 303(l)(1)(A)(ii) of the Social Security Act, for individuals for whom the only available “suitable work,” as defined in state law, is in an occupation that regularly conducts drug testing, will be issued after the final regulations identifying such occupations have been promulgated.