New Texas law will require drug testing for unemployment benefits

cupA new law scheduled to take effect Feb. 1st would subject Texans applying for unemployment benefits to a drug screening program.

The Texas Workforce Commission said the program is delayed as they are awaiting required parameters set by the United States Labor Department. Nevertheless, this adds an extra layer of concern for unemployed individuals worried about the protection of their privacy as well as the validity of their claims.

Are Drug Test Results Public Record?

If a person is arrested and a drug test is performed, the results of that drug test may become public records if the results are entered in a court proceeding. However, officers must obtain consent showing the individual understands that the results of any test performed could be used as evidence in a criminal case. It stands, therefore, that a refusal to take a drug test could also become public knowledge.

Most people take drug tests not as a result of breaking the law, but for employment. In most cases, the results of drug testing done for an employer are considered absolutely confidential, and therefore not a matter of public record.

Federal law mandates that such records are kept in a separate, secured medical file. Negligent release of drug testing results can be grounds for legal action. In some cases, HIPAA privacy rules make it hard for even the employer ordering the drug test to see the results, unless the employer has received proper explicit written consent from the employee.

According to the Texas Workforce Commission, if an employee has signed a properly worded Drug and/or Alcohol Testing Consent Form, and then fails a drug test and is fired, any claim for unemployment against the employer may be denied.

Employers may release the results of a failed test to arbitrators dealing with the related court case and government agencies. Under the U.S. Department of Transportation (which handles rules and regulations for workplace drug testing), drug testing labs are required to release the full results to employers in these cases.

The new legislation requiring drug tests prior to receiving unemployment benefits is covered by HIPAA, and therefore all results are confidential.

Is Unemployment Compensation Public Record?

During interviews, potential employees may be asked about gaps in employment history, but employers cannot ask if an individual was receiving, or has ever received, unemployment benefits.

Unemployment compensation records may only be disclosed to public officials and law enforcement in court proceedings concerning the individual. A person may be required to disclose receipt of unemployment benefits to certain public officials, such as child support enforcement agencies, food stamp agencies, and the National Directory of New Hires.

It’s important to note that information in the National Directory of New Hires, used primarily to locate persons of interest in child support cases, can now be used by other government agencies. One of these agencies is the Department of Education, which can request UC records in cases of delinquent payments on student loans.

Unemployment compensation records cannot be disclosed to private entities unless the records are subpoenaed and privacy regulations are overruled by a special court of law.