For years, legal commentary about cannabis and the workplace has focused on employees' off-duty cannabis use, as well as employers' rights to test and discipline employees for off-duty cannabis use.
But with the Occupational Safety and Health Administration's investigation of Trulieve, one of the largest multistate cannabis companies, the spotlight now shines on the safety of the licensed cannabis workplace itself and whether on-duty contact with cannabis may pose health hazards.
The Trulieve investigation signals that OSHA will regulate the workplace like any other, notwithstanding the federal illegality of cannabis, and may soon classify ground cannabis dust as a "hazardous chemical."
Cannabis companies should consider OSHA's investigation a harbinger of major compliance issues to come, as well as a call to recognize and respond to the hazards that their employees may be exposed to at work.
OSHA's Investigation
OSHA's investigation arose from the fatal asthma attack of an employee responsible for packaging ground cannabis into prerolls at a Trulieve facility in Massachusetts on Jan. 4, 2022. The employee, who was 27 years old with no known history of asthma, suffered an asthma attack and was rushed to the hospital, where she died days later.[1]
Within days of receiving Trulieve's report of the employee's hospitalization, OSHA initiated an investigation of the facility where she had worked.[2]
On June 30, 2022, OSHA cited Trulieve for three violations of OSHA's Hazard Communication Standard and proposed a penalty of $35,219.[3]
The citation treats ground cannabis dust as a hazardous chemical. OSHA regulations broadly define hazardous chemicals to include any chemical classified as a physical hazard or a health hazard, the latter of which includes skin irritation, eye irritation, respiratory or skin sensitization, and aspiration hazard.[4]
Specifically, the first violation in the OSHA citation was for the failure to compile a list of hazardous chemicals in the facility, including ground cannabis. The second addressed the failure to have a safety data sheet about ground cannabis and other hazardous chemicals, while the third was for the failure to train employees about ground cannabis and other hazardous materials.
After contesting the citation, Trulieve announced[5] in late December 2022 that it had resolved the citation through OSHA's informal settlement process.
According to the company's public statement, OSHA withdrew the first two violations, replaced the third with a violation of OSHA's requirement to conduct a hazard analysis and reduced the fine payable by Trulieve to $14,502.
Other terms of the settlement may have broad implications for the cannabis industry.
Trulieve agreed to:
- Implement a temporary training program to alert employees to the risk of allergic sensitization to ground cannabis dust;
- Evaluate a series of actions, including investigating options to better limit access and exposure to the areas where commercial grinding of cannabis occurs; and
- Conduct a study to determine whether ground cannabis dust qualifies as a hazardous chemical subject to OSHA's Hazard Communication Standard,[6] with results due on May 29, 2023.[7]
In a letter to Trulieve, OSHA noted that, based on its investigation, it decided not to issue a citation "at this time" under the general duty clause of the Occupational Safety and Health Act for "not protecting employees from the hazards of exposure to ground cannabis."[8]
OSHA's decision suggests that the hazards of exposure to ground cannabis dust may not yet be deemed a "recognized hazard." But this may change.
The general duty clause requires employers to furnish a workplace free of recognized hazards that cause or are likely to cause death or serious physical harm.[9]
If OSHA determines that an employer has failed to protect employees from a recognized hazard that may cause serious injury or death, it may issue citations and impose penalties under the general duty clause.[10]
Emerging Research and Guidance on the Health Effects of Working Near Cannabis Dust
The OSHA citation against Trulieve underscores that the cannabis industry must recognize and address hazards in the cannabis workplace, notwithstanding the federal illegality of cannabis.[11]
We expect that Trulieve's forthcoming study will inform OSHA's position as to whether ground cannabis dust is a hazardous chemical.
Although OSHA has yet to issue regulations specific to the cannabis industry, the issue of work-related asthma is nothing new to the agency.
OSHA has a fact sheet that is intended to help workers and their doctors determine if they have work-related asthma,[12] and it recognizes that employees without a history of asthma may develop asthma symptoms due to on-the-job exposure to plants, dust, chemicals, mold and other substances.
Studies of occupational exposure to cannabis to date have been limited in part by the illegal status of cannabis under federal law.[13] However, the research published so far suggests a possible link between occupational exposure to cannabis and allergic sensitization to the cannabis plant.
In a 2020 study, researchers found work-related allergic symptoms prevalent in employees of a cannabis-growing facility in Washington state. But because of the high rate of recreational cannabis use among the workers, researchers could not determine whether occupational exposure to cannabis dust caused respiratory health and sensitization issues.[14]
Not surprisingly, states at the forefront of legalizing recreational and medical cannabis have also been at the forefront of developing safety guidelines to reduce the risks associated with occupational exposure to the cannabis plant.
As early as 2017, Washington state's occupational health and safety agency warned that exposure to dust from a marijuana plant's leaves, buds and stem may lead to work-related asthma.[15]
In 2021, the same agency published a summary of research findings on work-related asthma, including in the cannabis industry.[16]
It identified 10 cases of cannabis-associated asthma allegedly caused by cannabis dust, fumes or smoke, based on workers' compensation claims data from 2009 through 2016. Seven of those cases were among cannabis production workers, three of whom had new-onset asthma.
State agencies in Colorado, Oregon and California have also issued guidance identifying asthma and allergy symptoms as among the potential hazards of cannabis work, recommending measures to protect employees from the hazards.[17]
Implications for the Licensed Cannabis Industry
OSHA's investigation demonstrates that the status of cannabis as a controlled substance under federal law in no way constrains the agency's enforcement authority over the cannabis industry itself.
Cannabis businesses are now on notice that they need to follow OSHA rules like any other employer and must assess hazards to which employees may be exposed.
In addition to the monetary penalties that OSHA may impose for violations,[18] noncompliance with its requirements exposes employers to reputational costs, employee relations issues and potential tort liability as well.
Cannabis businesses should pay close attention to the results of Trulieve's forthcoming study and OSHA's determination on whether ground cannabis dust will be deemed a hazardous chemical.
Among other things, such a finding would require employers to make safety data sheets about ground cannabis dust accessible to employees, educate employees about the hazards of ground cannabis dust, train employees on the handling of ground cannabis dust, and select and ensure the use of appropriate personal protective equipment while working near ground cannabis dust.[19]
Employers in the cannabis industry may want to consider the emerging guidance from state authorities referenced above and OSHA's recommendations[20] in deciding what actions to take.
The following measures, among others, may be appropriate for managing workers' exposure to ground cannabis dust:
Hazard Assessment
Evaluate the potential health and safety hazards to which workers are exposed in the course of their job duties. Drill down into the how, where, when and why of the hazard to develop a plan to minimize workers' exposure to the hazard.
Enhanced Ventilation
Work with an occupational safety specialist to evaluate ventilation in areas of the workplace where ground cannabis dust may be present. If appropriate, install equipment, such as exhaust fans, to better ventilate the work area.
Personal Protective Equipment
Determine what PPE — such as appropriate gloves and face masks — may be appropriate to reduce workers' potential inhalation and touching of ground cannabis dust.[21] Provide workers with the PPE suited to their particular job duties and train them on how to wear and dispose of it.
Work Rules
Prepare and distribute written rules that identify the health and safety requirements applicable to employees, including the wearing of PPE when warranted.
Training
Educate employees and supervisors to recognize the signs and symptoms of respiratory and skin irritation from exposure to ground cannabis dust, encourage employees to report any symptoms or safety concerns to the employer and seek medical advice for any change in their health status, and train supervisors to enforce the health and safety requirements and demonstrate a culture of health and safety.
Medical Surveillance
Involve an occupational health specialist in proactive oversight of employees who may be exposed to ground cannabis dust in the course of their job duties.
Documentation
Keep accurate records of information and training given to employees, distribution of work rules, responses to any concerns raised and other actions taken to recognize and address health and safety hazards in the workplace.
Job Rotation
Consider rotating employees among jobs with varying degrees of exposure to ground cannabis dust. Be prepared to reassign workers who develop sensitivity to cannabis to roles in which their exposure to cannabis allergens is reduced or eliminated.
Conclusion
Given the rapid growth of the cannabis industry, which created over 107,000 new jobs just in 2022, the potential hazards of occupational exposure to ground cannabis dust may affect a growing number of workers.[22]
OSHA's investigation of Trulieve marks an evolving regulatory landscape for the cannabis industry.
Cannabis businesses need to take seriously the hazards unique to cannabis work — and workplace health and safety more generally — if they seek long-term success in the industry.
References
[1] Dave Howard, Death of a Trimmer (Part 1): A cannabis worker's death went unnoticed for months. Now it's raising alarms in the industry, Leafly (Jan. 25, 2023), https://www.leafly.com/news/industry/death-of-a-trimmer-a-cannabis-workers-death-went-unnoticed-for-months-now-its-raising-alarms-in-the-industry.
[2] Inspection Detail, Inspection: 1572011.015 - Trulieve Holyoke Holdings Llc, OSHA, https://www.osha.gov/ords/imis/establishment.inspection_detail?id=1572011.015.
[3] Citation and Notification of Penalty for Inspection No. 1572011, OSHA (June 30, 2022), available at https://s3.documentcloud.org/documents/23120669/citation-truelieve-holyoke-holdings-1572011.pdf
[4] 29 C.F.R. § 1910.1200(c).
[5] Trulieve Announces Settlement with OSHA, Trulieve (Dec. 22, 2022) https://investors.trulieve.com/2022-12-22-Trulieve-Announces-Settlement-with-OSHA.
[6] 29 C.F.R. § 1910.1200.
[7] Trulieve Announces Settlement with OSHA, Trulieve, supra.
[8] Letter from Mary E. Hoye, OSHA Area Director, to Mitchel Osterhout, Trulieve EH&S Coordinator Re: Inspection #1572011 (June 30, 2022), available at https://aboutblaw.com/5sw.
[9] 29 U.S.C. § 654(a). See Employer Responsibilities, OSHA, https://www.osha.gov/workers/employer-responsibilities.
[10] OSHA, Field Operations Manual, Ch. 4 (Violations), at III (General Duty Requirements), https://www.osha.gov/enforcement/directives/cpl-02-00-164/chapter-4. However, as OSHA explained, "The general duty clause shall be used only where there is no standard that applies to the particular hazard and in situations where a recognized hazard is created in whole or in part by workplace conditions or practices that are not covered by a standard." See id. (citing 29 C.F.R. §1910.5(f)).
[11] Dave Howard, Death of a Trimmer (Part 2): A tragic death raises questions about health hazards in the cannabis industry, Leafly (Jan. 25, 2023), https://www.leafly.com/news/industry/death-of-a-trimmer-a-shocking-death-reveals-serious-health-hazards-in-the-cannabis-industry.
[12] Fact Sheet, Do You Have Work-Related Asthma? A Guide for You and Your Doctor, OSHA (March 2014), https://www.osha.gov/sites/default/files/publications/OSHA3707.pdf.
[13] 21 U.S.C. § 812.
[14] Coralynn Sack, Niloufar Ghodsian, Karen Jansen, Brynne Silvey, Christopher D Simpson, Allergic and Respiratory Symptoms in Employees of IndoorCannabisGrow Facilities, Annals of Work Exposures and Health, Vol. 64, Issue 7, 754-764 (2020),https://doi.org/10.1093/annweh/wxaa050.
[15] Marijuana and Work-Related Asthma, Washington State Dep't of Labor & Industries (2017), https://lni.wa.gov/safety-health/safety-research/files/2017/42_04_2017_Cannabis.pdf.
[16] Asthma and Cannabis Exposure, Washington State Dep't of Labor & Industries SHARP Safety & Health Assessment & Research for Prevention (2021), https://lni.wa.gov/safety-health/safety-research/files/2021/75_44_2021_Whitaker__AsthmaCannabis.pdf.
[17] A Colorado state agency issued guidance for cannabis workers identifying cannabis allergens as a potential hazard for cultivators, trimmers, extraction technicians and bud tenders, among other jobs. See Guide to Worker Safety and Health in the Marijuana Industry, Colorado Dep't of Public Health & Environment Marijuana Occupational Health and Safety Work Group (Jan. 2017), https://cdphe.colorado.gov/workplace-safety/resources-and-links/marijuana-occupational-safety-and-health. Oregon's occupational safety and health agency recognizes that people can have allergic reactions to cannabis and that "[b]reathing or inhaling cannabis allergens can result in shortness of breath, runny nose, sneezing, itching, and swelling and watering eyes." See Information for cannabis processors, Oregon OSHA, https://osha.oregon.gov/essentials/cannabis/processors/Pages/default.aspx#ppe. A California state agency directs employers that cultivate, manufacture, distribute, sell, and test marijuana products in California's cannabis industry to take steps to protect their employees from health and safety hazards associated with their work. See Cannabis Industry Health and Safety, State of California Dep't of Industrial Relations, https://www.dir.ca.gov/dosh/cannabis-industry-health-and-safety.html.
[18] OSHA Penalties, OSHA, https://www.osha.gov/penalties.
[19] 29 C.F.R. § 1910.1200. See OSHA, Hazard Communication, https://www.osha.gov/hazcom.
[20] Letter from Mary E. Hoye, OSHA Area Director, to Mitchel Osterhout, Trulieve EH&S Coordinator Re: Inspection #1572011, supra.
[21] Evaluation of a Medicinal Cannabis Manufacturing Facility with an Indoor and Outdoor Grow Operation, National Institute for Occupational Safety and Health (NIOSH), at 27 (Rev. June 2019), https://www.cdc.gov/niosh/hhe/reports/pdfs/2016-0090-3317revised082019.pdf. This study evaluated exposure to dust during destemming and grinding processes, and recommended that workers use a NIOSH-approved N-95 respirator instead of a "dust mask."
[22] Bruce Barcott, Beau Whitney, Max Savage Levenson & Chris Kudialis, Jobs Report 2022, Leafly, https://leafly-cms-pro
Reprinted with permission of Law360.
