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SCongressional ______
SResearch Service a
Drug Testing Unemployment Compensation
Applicants & the Fourth Amendment
October 7, 2019
On October 4, 2019, the Department of Labor (DOL) published final regulations to guide states on how to
design and implement drug testing programs in accordance with Section 303 of the Social Security Act.
Congress amended Section 303 in 2012 to clarify that nothing in federal law prevents states from testing
two groups of unemployment compensation (UC) applicants for illicit drug use: (1) those terminated
from employment with [their] most recent employer (as defined under the State law) because of the
unlawful use of controlled substances (hereinafter referred to as the previously terminated group), and
(2) those who are suited to work in an occupation that regularly conducts drug testing (hereinafter
referred to as the regularly tested occupation group). State-implemented UC drug testing programs will
likely evoke constitutional considerations under the Fourth Amendment, which protects against
unreasonable government searches.
This Sidebar begins with a general overview of the Fourth Amendment and then reviews three Supreme
Court opinions addressing the constitutionality of drug testing programs in the employment context, as
well as two lower court cases involving similar state laws that conditioned the receipt of federal benefits
on passing drug tests. The post concludes with an assessment of factors that might affect the
constitutionality of a UC drug testing program in light of the Fourth Amendment. (Additional legal and
policy issues raised by DOL's drug testing regulations are discussed in this CRS report.)
Fourth Amendment Overview
The Fourth Amendment protects the right of the people to be free from unreasonable searches and
seizures by the federal government. Although Fourth Amendment protections do not extend to purely
private action, the Supreme Court has held that its protections apply to state and local action through the
Due Process Clause of the Fourteenth Amendment. Governmental conduct generally has been found to
constitute a search for Fourth Amendment purposes where it infringes an expectation of privacy that
society is prepared to consider reasonable. The Court has held on a number of occasions that
government-administered drug tests are searches under the Fourth Amendment. Therefore, the
constitutionality of a governmental program that requires an individual to pass a drug test to receive UC
likely would turn on whether the drug test is reasonable under the circumstances.
Congressional Research Service
https://crsreports. congress.gov
LSB10354
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/goveaqx0001&div=1&collection=&method=preview&ext=.png&size=3)