Drug Testing for People on Welfare – What’s New in 2014

By Andrew David Easler, Esq.

We’ve all seen the Facebook memes – the ones that say things like, “If I have to pass a drug test to work, welfare recipients should have to pass one to NOT work.” But how realistic is this? What does the law say?

Where We’ve Beent

Ever since federal welfare reform back in 1996, various states have proposed that welfare recipients and applicants should be drug-tested. Federal law actually permits drug testing under the “Temporary Assistance for Needy Families” grant, and in recent years, more and more states have begun to embrace the concept of drug testing. In 2009, more than 20 states proposed drug testing as a condition for eligibility under public assistance programs, and by 2010, a dozen more states had devised similar proposals. None, however, became law, because most of what was being proposed involved random testing, which was ruled unconstitutional in 2003 by the Michigan Court of Appeals in Marchwinski v. Howard.

Where We’re Going

As of 2014, eleven states have passed legislation requiring drug testing for welfare recipients. The legislation does not, however, permit random testing – there has to be a reasonable suspicion of drug use. Several states have also passed laws requiring TANF applicants to be screened for use of illegal drugs. The welfare laws of 1996 also bar states from delivering TANF assistance to anyone who has been convicted of felony use, possession, or distribution of illicit drugs. Five states (Minnesota, Maine, Virginia, Pennsylvania and Wisconsin) have modified that ban in such a way that persons who have been convicted of drug felonies can receive benefits, but only if they agree to drug testing. Positive screening can result in loss of benefits. However, when children are involved, in some states the parents may be denied benefits, but children can still access benefits via a third party.

In March of 2014, Phil Bryant, the Governor of Mississippi, signed HB 49 into law, requiring TANF applicants to fill out a questionnaire designed to determine the likelihood that an applicant has a problem with substance abuse. If the results of the questionnaire show a probability of substance abuse, then the applicant is required to be tested. An applicant may still receive benefits if he or she agrees to a treatment plan, and provides a negative test result at the end of treatment.

North of the Border

In Canada, there is no legislation barring welfare recipients from receiving benefits. More than ten years ago, the Ontario provincial government studied the idea, and rejected it. Recently, Ontario floated the idea again, albeit weakly and to little support.

Job Opportunities

Obviously, the more sectors that embrace drug testing, the more employment opportunities there will be for qualified drug and alcohol test technicians. Presumably, welfare recipients, if they have to be tested, will be more motivated to enter treatment programs and will become healthier and more productive. Assuming that testing programs can be carried out without violating basic human rights, the potential outcomes would seem to be positive for all concerned.

The information on this page may have changed since we first published it. We give great legal advice, but this page (and the rest of our site) is for informational use only and is no substitute for actual legal advice. If you’d like to establish an attorney-client relationship, reach out to us and we’ll tell you how we can make it official. Sending us an email or reading this page alone doesn’t mean we represent you.