In 2017, SB 21 amended Texas State employment laws to “require mandatory drug screening as a condition for the receipt of unemployment compensation benefits by certain individuals.” SB 21 was passed largely in support of Texas businesses and Drug Free Workplace policies. In the past two years, despite changes to the drug laws and popular opinion shift on drug use, SB 21 remains in place.
Still, some argue that it was an unnecessary bill in the first place, “in search of a problem that does not exist,” as stated in the bill’s notes. The notes point out that if someone is terminated for cause (such as a properly verified positive drug test result), they are not eligible for unemployment benefits anyway, so its possible that time and money will be spent to test people who might be claiming benefits due to other circumstances such as layoffs. And, the law doesn't apply to everyone--just certain professions.
In its final version, SB 21 did include a provision for Texas Workforce Commission to follow federal drug testing laws and regulations and limits testing to those seeking employment in high-risk occupations that already require drug testing like aviation, trucking, and logistics. On paper, that sounds like a reasonable solution to ensure more fairly-executed testing for those who will be required to undergo drug tests as a condition for receiving unemployment benefits: simply follow the federal regulations and all is well.
However, it may not be that simple. Texas Workforce Commission offices will hire Third-Party Administrators (TPAs) to conduct the required testing. All TPAs are not created equal. What sounds simple enough on paper--follow the compliance rules--doesn't always happen in real life. Time and time again I receive frantic phone calls from people who thought they had hired federal drug test compliance experts but the testing went awry in some way. Now they have a problem.
The State of Texas will need to ensure that Texas Workforce Commission contracts only TPAs who are rigorously trained, certified and proven to test using protocols including:
- Following proper test procedures beginning to end
- Sending all collections to a Substance Abuse and Mental Health Services Administration (SAMHSA) Certified lab
- Verifying results using trained Medical Review Officers (MROs)
- Being responsive, quick, and accurate
If you should know anyone that gets put through this process, please let them know what to look for in the drug testing phase so they can be prepared to challenge a result that might have strayed from the federally-mandated protocol. We are passionate about compliance and work to ensure fair, accurate, consistent testing.