States could win new powers to drug test people who lose their jobs thanks to a new proposal from the Donald Trump administration.

The draft regulation, which won’t be finalized until after a two-month comment period, would allow ― but not require ― states to make peeing in cups a condition of eligibility for unemployment insurance. The Labor Department unveiled the proposed regulation Friday afternoon with no comment from Secretary Alexander Acosta.

Unemployment claimants are only eligible for benefits if they’ve been laid off through no fault of their own after having been employed for most of the previous year. Republicans have sought to add drug-testing requirements since around 2010, shortly after the national unemployment rate reached 10 percent and the government was spending tens of billions of dollars on benefits each year.

The new regulation might violate constitutional protections against unreasonable search and seizure by the government, according to the National Employment Law Project.

“The mere act of applying for a government program does not provide grounds to reasonably suspect a person of drug use,” NELP director Christine Owens said in a statement.

Owens also said the proposal seems rooted in the assumption that unemployed people are to blame for losing their jobs, which is contrary to the entire concept of unemployment insurance. “Drug testing is simply a lazy way of blaming the victims of larger economic trends or corporate practices such as downsizing, outsourcing, and offshoring,” she said.

The proposal stems from a 2012 compromise between congressional Democrats and Republicans. In exchange for an extension of federal unemployment compensation, which helped workers who had used up six months of state-funded benefits, Democrats agreed to let states drug test some workers.

But they left it up to the Labor Department to decide which workers could be tested, and Republicans hated the regulation that Barack Obama’s Labor Department proposed in 2016. States would only have been allowed to test workers in occupations that have a public safety component, such as police officers and train operators.

So Republicans in Congress struck down the Obama regulation last year using a special procedure called the Congressional Review Act. Federal agencies are not supposed to be able to reissue the regulation in a “substantially similar” fashion, making CRA resolutions an especially powerful deregulatory tool.

Or so it seemed. Trump’s Labor Department calls the new version of the regulation a “substantially different and more flexible approach,” but experts aren’t so sure.

The new rule says states can make up lists of occupations that regularly drug test workers by using almost any kind of survey by a private or government organization. Anyone who works in such an occupation could be required to pass a drug test in order to qualify for benefits. It’s far broader than what the Obama administration had proposed ― which, according to one interpretation, actually means it’s a much stronger regulation.

“The Trump administration’s position rebuts the conventional wisdom that the CRA categorically stops agencies from reissuing public protections and has opened the door for agencies to bring back repealed protections in stronger form,” said Amit Narang, a policy expert with Public Citizen, a public interest nonprofit.



The new proposal could be good news for Democrats. It means they could someday revive some of the several dozen other regulations Republicans have undone in the past two years.