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Outdated Marijuana Rules Complicate Transit Hiring

Nearly half of all Americans now live in a jurisdiction where it’s legal to smoke weed. But for some workers, including bus drivers and train operators, drug-testing protocols make legalization irrelevant.

The double standard is glaring, says Ron Giza, treasurer of the Amalgamated Transit Union Local 1342 in Buffalo, N.Y.

“You could drink 30 beers and smoke one joint on a Friday night,” Giza says, “and 30 days later you’re still dirty from the joint but by Monday morning you’re clean from the beers.”

A movement to decriminalize and legalize marijuana has swept the United States over the last decade, with 23 states, plus Washington, D.C.; Guam; and other territories now allowing recreational use. Nearly half of all Americans now live in a jurisdiction where it’s legal to smoke weed, according to the Pew Research Center. But for some workers, including bus drivers and train operators, drug-testing protocols make legalization irrelevant.

Some of the most common testing procedures, including urine tests, can detect THC in the system long after the effects of the drug have worn off. Rather than testing whether someone is currently impaired, many common tests simply show that someone has used THC products at some point in the recent past. That can lead to people being disciplined at a job, or disqualified from hiring, for using a legal product during their personal time. For transit agencies, it’s an additional hindrance to hiring new bus drivers and train operators — a workforce that is already critically understaffed in many cities, resulting in service delays and further challenging public transit’s recovery from the COVID-19 pandemic.

Marijuana testing was an issue that came up in places like Denver and Boston when Chris Van Eyken, director of research and policy at TransitCenter, was putting together a report on operator shortages. Agencies were interviewing enthusiastic job candidates whose hiring was complicated by legal marijuana use, Van Eyken says. It affected existing employees too.

“Operators who were reporting to work fully sober were still having issues with it,” Van Eyken says.

Until this year, agencies were bound by U.S. Department of Transportation (USDOT) rules that required urine tests for marijuana use. But earlier this year, USDOT changed its regulations to allow for the use of “oral fluid testing.” The rule change was meant to “give employers a choice that will help combat employee cheating on urine drug tests and provide a less intrusive means of achieving the safety goals of the program.” It also would have the benefit of providing a more targeted test of employees’ impairment. Oral fluid tests don’t detect THC use nearly as far back as urine tests.

In order for the rules to take effect, though, the U.S. Department of Health and Human Services (HHS) needs to certify two labs to perform oral fluid testing. TransitCenter is urging advocates to ask HHS officials to expedite the process of lab certification, but that process could take time, Van Eyken says. The department did not respond to requests for comment from Governing.

There are many bigger issues at play in the worker shortage, including compensation rates and human resources practices. But lots of “well-meaning rules” like outdated drug-testing and minimum-age requirements for drivers “get in the way of potential recruits that really want the job,” Van Eyken says. Transit agencies should adopt policies that will allow them to immediately switch to oral fluid testing for job candidates once the new labs are certified, TransitCenter says.

In the meantime, worker shortages continue to disrupt transit service. Jamal Davis, a transit rider organizer with the Coalition for Economic Justice in Buffalo, has worked with the local transit workers union to push for new testing rules since New York legalized recreational weed in 2021. He says the issue has “amplified the labor shortage” at Niagara Frontier Transportation Authority and contributed to problems for riders.

“It affects ridership overall,” Davis says. “If there’s less buses on the road, people are less inclined to catch the bus because they don’t want to wait in the elements.”

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