Having to pee in a cup as a condition of employment is humiliating enough, but it has been the norm in many industries since the Reagan drug war orthodoxy of the 1980s. Now, however, you may also have to pass a urine test to get unemployment benefits if you get laid off.

The Trump administration’s Department of Labor on Oct. 3 promulgated a new rule allowing “greater clarity and flexibility” to states in identifying occupations in which drug testing will be used in their unemployment insurance programs.

“The flexibility offered in the new rule respects state differences with regard to employment drug testing across our country,” said John Pallasch, the assistant secretary for employment and training. “This rule lays out a standard that states can individually meet under the facts of their specific economies and practices.”

The rule, published in the Federal Register, permits states to test unemployment compensation applicants if they worked in an occupation where drug testing is regularly conducted. In addition to specific occupations named in the rule, states can additionally identify other occupations where employers conduct drug testing as a standard eligibility requirement for employment. 

The new rule rescinds a 2016 regulation under which states were limited to testing unemployment applicants from certain listed occupations in which workers are tested “regularly.” At the time, Congress passed a “resolution of disapproval” about the more lax rule, which was then signed by Trump.

The Labor Department said authority for the new rule is granted under the Middle Class Tax Relief & Job Creation Act of 2012, which allows states to deny unemployment compensation to an applicant who tests positive and who worked in an occupation that regularly conducts drug testing.

The new rule seems to sum up the strange political schizophrenia affecting the United States at this moment, with legal and cultural space rapidly opening for cannabis even amid harsh reaction at the highest levels of power. 

The rule comes just a week after a new labor secretary took office — Eugene Scalia, a veteran corporate lawyer and son of the late arch-conservative Supreme Court Justice Antonin Scalia. He replaces Alexander Acosta, who stepped down amid public outcry over the leniency of a 2008 plea agreement he struck with the infamous financier sex-offender (and Trump crony) Jeffrey Epstein back when Acosta was U.S. attorney in southern Florida. 

And Acosta, whatever his misdeeds, appears to have had more progressive views on this particular question. Last year, he called on employers to rethink the practice of drug testing every job applicant, which he suggested was a barrier to qualified people entering the workforce.  
 
Acosta’s remarks came in response to a question from Rep. Earl Blumenauer (D-OR) during a House Ways & Means Committee hearing in April 2018. Blumenauer, representing a state with legal cannabis, expressed concern over marijuana showing up “in ways that are disqualifying” on drug tests. He asked Acosta what could be done to “unleash” those workers’ potential. 

“There are sometimes valid health and safety reasons why an individual that cannot pass a drug test shouldn’t hold a certain job,” Acosta replied. But he added that some employers “make the assumption that because there’s a negative result on a test they would not be a good employee.”

As Politico noted, Acosta’s remarks seemed to reflect a softening of views on cannabis within the Trump White House. That same month, Trump reportedly told Sen. Cory Gardner (R-CO) that he would support legislation that deferred to states on the legality of cannabis — and this despite a new campaign to crack down on cannabis by then-Attorney General Jeff Sessions.

Such hopes for a softening are being dashed yet again — as Scalia issues his new rule, and the U.S. Surgeon General launches a new propaganda campaign against cannabis.

There is momentum from the states in a more relaxed direction, however — holding out hope that many will not choose to exploit their new latitude to impose urine tests. As Illinois prepares for adult-use cannabis to become legal on Jan. 1, employers are being told to consider how a zero-tolerance policy may affect their ability to recruit workers.

“Unemployment is so low that employers cannot insist on a zero-tolerance policy,” Curtis Graves, staff attorney for the Denver-based Employers Council, told Peoria’s Journal Star. 

An Employers Council survey in 2018 indicated that 13% of employers not regulated by the Department of Transportation had relaxed their cannabis testing policies in the previous two years, and 7% had dropped cannabis from pre-employment testing altogether.  

A scandal in New Orleans over false positives in the city’s drug testing program has focused attention on the injustices of the urine-test orthodoxy.

And two years after legalizing, Nevada this June became the first state to bar employers from discriminating against job applicants on the basis of a positive test for cannabis.