Alert

Employers Subject to Workplace Safety Laws Despite Marijuana’s Illegal Status

March 17, 2023

Recently an individual employed by Trulieve Inc., who was responsible for grinding and handling cannabis at Trulieve’s cultivation site in Massachusetts, died due to asthma-related complications following exposure to “occupational quantities of whole and ground cannabis,” according to an Occupational Safety and Health Administration (OSHA) hazard letter issued in June 2022. Under a settlement agreement with OSHA, Trulieve agreed to study the potential hazards of ground marijuana dust.

OSHA Will Regulate the Cannabis Industry

Federal courts and regulating bodies have already demonstrated an interest in enforcing federal employment laws in the marijuana industry, despite the fact that cannabis remains classified as an illegal substance under the Controlled Substance Act (CSA). In those cases, instead of addressing the illegality of marijuana at all, the federal courts squarely focus on the legal factors an individual must prove to prevail in the litigation.

Now it appears that the federal government intends to take the additional step of regulating the workplace safety of cannabis companies under the Occupational Health and Safety Act (Act) by taking a similar approach, i.e., treating the cannabis company as if it is legitimate, notwithstanding the federal illegality of marijuana.

In other words, cannabis and cannabis-ancillary businesses can no longer hide behind the federal illegality of cannabis to shield against enforcement actions by the federal government when it comes to protecting employees from hazards in the workplace. Cannabis employers are subject to the same OSHA regulations as other industries, and that includes following the general duty clause, which states that employers should provide “a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Indeed, Trulieve is not the first or only cannabis-related company on OSHA’s radar. In June 2022, OSHA cited PharmaCann Inc. for potential workplace hazards at a greenhouse in Montgomery, New York. OSHA and ParmaCann settled that case, with PharmaCann agreeing to pay an $18,853 fine. While neither the Trulieve nor PharmaCann case involved a general duty clause violation, OSHA’s demonstrated interest in regulating this industry opens the door to such a violation in the future if cannabis companies do not comply with OSHA workplace safety regulations.

Further compounding this issue is the fact that many states have their own state-specific workplace safety agencies (modeled after OSHA), with their own regulations and enforcement mechanisms separate from and in addition to OSHA. Cannabis employers need to be aware of and compliant with these state laws as well.

To add an additional layer of complication to the important issues surrounding employee safety in the cannabis context, the cannabis industry is still in its infancy; there are many workplace safety issues that are currently unknown. In Truelieve’s case, the fact that cannabis dust could trigger an asthmatic reaction was likely foreseeable. However, not much is known about the exact scientific or medical correlation between cannabis dust and asthma, which means that there are no permissible exposure levels OSHA regulators can presently use to determine when exposure becomes a hazard.

Avoiding Workplace Injuries

While all workplace environments pose some dangers for injury, cannabis employees are most likely at the highest risk during the production process. These hazards can include exposure to pesticides, carbon dioxide, carbon monoxide, corrosive materials, cleaning products, and highly flammable materials such as butane. Noisy, heavy, or dangerous equipment and machinery can likewise pose risks. To that end, cannabis employers should have a comprehensive plan in place for federal and state workplace safety compliance.

Recommended safety components of such a plan generally include the following:

Employee Training

First and foremost, cannabis employers must ensure that their employees are properly trained on the use of all equipment and tools, and that proper supervision is provided at all necessary times. Employers should document the training it provides its employees.

A Documented Safety Program

In addition to proper employee training, a properly written safety program is the blueprint for OSHA (and state-specific regulatory) compliance. Indeed, OSHA requires specific written procedures for safety related to the handling of hazardous materials. This manual should cover, for example, employee and supervisor safety responsibilities, incident reporting, emergency plans, disciplinary action, and proper use of tools and equipment. The safety program should identify all aspects of your operations and the hazards associated with each procedure and set forth measures to mitigate or, preferably, eliminate those hazards.

Accountability

Similar to training, disciplinary actions must be documented, whether for minor infractions or serious violations. In the event of an OSHA citation, disciplinary action records are one of the first pieces of information OSHA will request. Employers should embrace an accountability program as it protects both the employer and the employees, given that it will provide a significant impact in reducing workplace injuries.

Safety Auditing

Lastly, it is recommended that regular safety audits are performed, which will help an employer identify areas that are in need of improvement. An employer should be proactive and should not simply reply on an accountability program as a driver to reducing workplace injuries and ensuring OSHA compliance.

As the cannabis industry continues to grow and make headlines, it will inevitably attract additional scrutiny from federal agencies such as OSHA. The trend in recent cases addressing these issues demonstrates that cannabis employers must ensure they are providing a safe workplace for their employees and comply with all OSHA regulations (along with state workplace regulations), as if they were operating within any other industry.