Welfare programs are government subsidies that provide support and financial assistance for its citizens and residents of society. Some examples of welfare programs include health care, food stamps, unemployment compensation, and housing assistance. The type of welfare programs, as well as the amount of welfare available to individuals and families, depends on such factors as the county, state, or region.

This financial assistance provided by a government entity may require drug testing, similar to employee drug testing. The purpose of this drug testing is to determine whether a welfare applicant has ingested illegal drugs within a certain time period.

A failed drug test may prevent the applicant from receiving public assistance, such as food stamps or Medicaid, for a specified period of time, or until they have completed a substance abuse treatment program.

Often, the eligibility of a child in a home where the parents test positive is not affected; however, a family member, or other designated person who has also passed a drug test, is required to to act as the protective payee for the child’s welfare benefits. Welfare drug testing is legal in several states, but some states do not allow welfare drug testing.

Which States Allow Welfare Drug Testing?

The discussion around welfare drug testing is complex and constantly evolving. Each state decides whether or not to drug test welfare applicants. At least 13 states have passed legislation that allows government entities to screen or drug test citizens receiving public assistance. These states are:

  • Alabama;
  • Arkansas;
  • Arizona;
  • Florida;
  • Georgia;
  • Kansas;
  • Michigan;
  • Mississippi;
  • Missouri;
  • North Carolina;
  • Oklahoma;
  • Tennessee;
  • Utah;
  • West Virginia; and
  • Wisconsin.

Florida’s drug testing law was declared to be unconstitutional by a district judge in 2013. In 2014, the 11th U.S. Circuit Court of Appeals upheld the ruling, which is why Florida is no longer included on the list of states that allow drug testing for welfare.

What Other States are Proposing Drug Testing for Welfare Recipients?

As recently as March of 2017, at least twenty other states have proposed legislation that would require some form of drug testing or screening for welfare recipients: Hawaii, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New Jersey, New York, North Dakota, Rhode Island, South Carolina, Texas, and Vermont.

Is Every Welfare Recipient Required to Undergo Testing?

Simply put, no. Some states apply drug testing or screening to all applicants, while others use specific language that there has to be reason to believe the person is using illegal drugs, or has a substance abuse disorder, in order to determine the kinds of individuals selected to undergo testing or screening. Still others require a specific screening process.

Additionally, Wisconsin included a provision in 2015 to drug test certain individuals participating in SNAP Employment and Training program. The federal government has determined that this goes against federal law that prevents states from imposing additional criteria on recipients of SNAP food benefits.

Florida, Oregon, and Pennsylvania have proposed to drug test applicants who have been convicted of drug-related offenses, instead of waiting to test recipients who are suspected of using illegal drugs. Further, Arizona’s proposal would apply only to nutritional assistants applicants who have been convicted of drug-related offenses.

Is Drug Testing Welfare Recipients Legal?

Yes, drug testing welfare recipients is legal, but this legality has come under questioning recently, specifically in Florida. In Florida, a resident sued the state because it required welfare applicants to undergo drug testing, whether there was suspicion of illegal drug use or not. The Floridian claimed that this is unfair, and the court agreed, ruling in the resident’s favor.

In 2012, a 2003 Michigan Court of Appeals case prevented several proposals from becoming law. These proposals would have required drug testing as an eligibility condition for public assistance programs, much like the aforementioned Florida case.

Most of the legislation had been focused on unfounded drug testing, or testing randomly, when there was no suspicion. At the time, it was ruled unconstitutional. Since then, the legislation has gained traction and several states have approved laws that are at odds with the 2003 Michigan Court of Appeals case.

According to the 1996 welfare law, states are barred from providing welfare assistance to people convicted of a felony for possession, use, or distribution of illegal drugs. It is up to the state, however, to decide to opt out of the ban or modify the time period for which the ban lasts. Maine, Minnesota, Pennsylvania, and Wisconsin are just some of the states that have modified the ban.

Should I Contact an Attorney Regarding Welfare Drug Testing Legality?

Welfare drug testing, although legal, is complex and requires a good understanding of the laws that make it legal. A positive drug test will most likely result in a recipient losing access to the assistance that they need.

An experienced and practiced government attorney will help you better understand welfare testing and what your options are if you test positive for illegal drugs while receiving welfare assistance.