Welfare Drug Testing Legality

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 How are Drug Tests and Welfare Related?

Welfare programs are government subsidies that provide support and financial assistance for a state’s citizens and residents. Some examples of welfare programs include food stamps, unemployment compensation, medical assistance, and housing assistance.

To qualify for government financial assistance, you may be required to submit to drug testing, similar to employee drug testing. This drug testing aims to determine whether you have ingested illegal drugs within a certain period before applying for welfare benefits. A failed drug test may prevent you from receiving public assistance for a specified period, or until you have completed a substance abuse treatment program.

Your failing a drug test does not affect your children’s right to collect welfare benefits; however, a family member or other designated person who has passed a drug test must 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:

  1. Alabama
  2. Arkansas
  3. Arizona
  4. Florida
  5. Georgia
  6. Kansas
  7. Michigan
  8. Mississippi
  9. Missouri
  10. North Carolina
  11. Oklahoma
  12. Tennessee
  13. Utah
  14. West Virginia
  15. Wisconsin

Other states are considering requiring drug testing for welfare applicants. At least twenty-one states have proposed legislation requiring some form of drug testing or screening for welfare recipients. These include:

  1. Colorado
  2. Florida: Florida’s original law required drug testing of welfare applicants even when there was no indication of drug use. The Federal Appeals Court ruled that this is unconstitutional because it constitutes an “unreasonable search” under the Fourth Amendment to the U.S. Constitution. This Florida ruling was monumental – crucial to the plans of many states struggling to decide whether or not to move forward on various versions of required testing of welfare recipients.
  3. Georgia
  4. Hawaii
  5. Illinois
  6. Kentucky
  7. Maine: Only welfare applicants with a drug conviction within the last 20 years are subject to testing. Those who refuse to take the test or test positive will be required to enter rehabilitation to continue receiving aid.
  8. Massachusetts
  9. Michigan
  10. Minnesota
  11. Mississippi
  12. Montana
  13. Nebraska
  14. Nevada
  15. New Jersey
  16. New York
  17. North Dakota
  18. Rhode Island
  19. South Carolina
  20. Vermont
  21. Wisconsin: The governor has pushed for legislation that would mandate drug testing among childless adults on Medicaid and everyone applying for or receiving unemployment, food stamps, and other assistance in the state. In return, the governor says he wants to offer free drug treatment.

Is Every Welfare Recipient Required to Undergo Testing?

Simply put, no. As mentioned, a federal appeals court has held that a state cannot demand drug testing of every welfare applicant. There has to be a reason to believe the person is using illegal drugs or has a substance abuse disorder,

Is Drug Testing Welfare Recipients Legal?

Drug testing welfare recipients is legal, but this legality has been questioned recently. Most litigation over drug testing has been focused on unfounded drug testing, or testing randomly, when there is no suspicion that the person is using or has used illegal drugs. The Florida case mentioned above is one example.

In 2012, a 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 law.

Controversy Surrounding Drug Testing for Welfare

Drug testing is hotly debated and controversial. Proponents of such programs have supported them with a variety of goals in mind, including getting help for drug users on welfare payments by referring those testing positive to treatment, avoiding “subsidizing drug habits” with public money, deterring drug use, reducing state welfare spending, and protecting children.

Opponents such as the American Civil Liberties Union (ACLU) have argued:

  • Drug testing welfare recipients is unfair because there is no reason to believe welfare recipients use drugs any more than the general public. There are several scientific studies that have proven this to be the case.
  • Numerous agencies, including child welfare agencies, oppose drug testing. These include the Center for Addiction and Mental Health, the American Public Health Association, the National Association of Social Workers, the National Association of Alcoholism and Drug Abuse Counselors, the National Council on Alcoholism and Drug Dependence, the Association on Alcohol, Drugs, and Disability, the National Advocates for Pregnant Women, the Legal Action Center, the National Welfare Rights Union, the Youth Law Center, the Juvenile Law Center, and the National Coalition for Child Protection Reform.
  • Drug testing is expensive. The average cost of a drug test is about $42 per person, not including hiring personnel to administer the tests, ensure confidentiality of results, and run confirmatory tests to guard against false positives. Another way to measure the cost of drug testing welfare recipients is by determining how much it costs to “catch” a drug user.
    • A congressional committee estimated that the cost of each positive drug test of government employees was $77,000 because the positive rate was less than one percent. In 2017, states spent more than $490,000 to drug-test 2,541 people who had applied for Temporary Assistance for Needy Families (TANF) benefits, which yielded just 301 positive tests. That amounts to $1,628 per user. The cost per positive test varies because of differences in state programs, but a review of 14 programs in 2016 reported costs per positive test result of between $200 (Tennessee) and $7,006 (Missouri)
  • Mandatory drug testing is an ineffective means to uncover drug abuse. An Oklahoma study found that a questionnaire was able to detect 94 out of 100 drug abusers accurately. The questionnaire was also useful in detecting alcohol abusers, and something drug tests fail to accomplish.
    • Drug tests are most likely to detect marijuana use since the active ingredient in marijuana stays in the body’s system longer than any other illicit substance. Therefore, drug tests often fail to identify people who are using more powerful, more addictive, and more dangerous drugs like methamphetamine or cocaine, which exit the body’s system in a matter of hours or days.
  • Drug testing for welfare benefits is unethical. The Kennedy Institute of Ethics indicates that for ethical acceptability, a practice must be (1) reasonably likely to meet its aims, (2) sufficiently important in purpose as to outweigh harms incurred, and (3) lower in costs than feasible alternatives.
    • They conducted research and analysis of drug testing for welfare benefits and found that pursuing recreational drug users is not important in the light of costs incurred, while dependent users who may require referral are usually identifiable without testing. Drug testing of welfare recipients is, therefore, not an ethically acceptable policy.

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 losing access to the assistance you need.

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

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