South Carolina Lawmakers Send Unemployment Drug Testing Bill To House Floor

A bill that would cut off unemployment benefits to job applicants who fail an employer’s drug test is heading to the South Carolina House of Representatives floor.

After objections from a couple Democrats Tuesday, the full House judiciary committee passed the bill, which allows companies to turn positive test results over to the Department of Employment and Workforce without legal liability.

Similar legislation working its way through the Senate would mandate drug testing up front for anyone applying for unemployment benefits, and have the state reimburse test costs. But DEW Director Abraham Turner testified that such a change would go against federal Department of Labor rules.

The author of the House bill, Rep. Eddie Tallon, R-Spartanburg, said his solution is better because the subcommittee worked with DEW to ensure it would hold up in court and it would save the state money because employers foot the bill for drug tests.

He said he wrote the legislation after an employer in Cherokee County told him that he was offering jobs to plenty of unemployment beneficiaries, only to have them fail drug tests.

“Consequently they would continue to draw unemployment benefits, which is absolutely not right, because they’re unfit for work if they can’t pass a drug test.”

He said the legislation works because DEW would be responsible for working up a waiver for companies to give those they’ve made offers to before a drug test, to protect the business from liability if that person’s benefits are ultimately cut off.

Right now the bill simply outlines how a company should turn in a failed drug test, but Tallon said he plans to amend it on the House floor to make reporting mandatory. He also wants to clarify that during a DEW appeal, the employer would not have to appear, but only send the drug testing company’s evidence and an affidavit.

“The affidavit is sufficient because all they’re doing is a person’s coming to work, they’re coming to apply for work, they’re sending that person to have a drug test, and the drug test comes back positive. That’s all the employer really knows about that person. I’m not a lawyer, but I don’t know what else a lawyer would ask them. That’ll just muddy up the works.”

But advocates, like Sue Berkowitz of the S.C. Appleseed Legal Justice Center, say benefits shouldn’t even be revoked until the appeals process is finished, which can take a month.

“For someone who’s lost their job, they’re living check to check. They’ve already had one devastation in their life, they’ve lost their job,” Berkowitz said. “Trying to have them wait 30 days or 45 days to get to the bottom of all of this when in fact they’re sure that this is not a positive or proper drug test, they should not have to wait for their benefits. At that point you could lose your home, the lights can be turned off, you can’t feed your family.”

Tallon said during his 15 years of overseeing drug testing for a private company, appeals almost never succeeded because testing companies have medical review officers who contact people who test positive and double check that there is not some medical reason for the failed test.

But Berkowitz said she’s seen “horror stories” of false positives that take years to fight in court because “while everyone thinks this is an infallible science, it really isn’t.”

Rep. James Rutherford, D-Richland, was one of the lone dissenting voices on the panel, emphatically stressed that the bill could have unintended consequences of discouraging people from applying for jobs where drug testing is possible. He also pointed out that other people, like state scholarship holders, elected officials, law enforcement officers and business owners with tax credits, benefit from much more state money and aren’t subjected to drug testing.

“Why are we choosing people who’ve finally got a job and are finally getting off the unemployment rolls, why are we choosing them? Because they are the least of thee. And that’s who you all enjoy beating up on,” Rutherford said.