If you employ workers in the cannabis industry, consider including workplace health and safety among your top priorities as you set goals for the new year.
With the rapid growth of the cannabis industry comes increased scrutiny from government regulators, including those charged with enforcing workplace health and safety laws. For example, in December 2022, cannabis producer and retailer Trulieve announced that it reached a settlement with the Occupational Safety and Health Administration (“OSHA”) of a citation issued in June 2022 for alleged violations of the Occupational Safety and Health Act. The citation followed OSHA’s investigation of the death of a Trulieve production worker from asthma-related complications allegedly related to her occupational inhalation of cannabis dust. As part of the resolution of the citation, Trulieve agreed to study the hazards of exposure to ground cannabis dust for purposes of determining whether cannabis dust should be classified as a “hazardous chemical” for OSHA purposes. Expected to be complete in May 2023, the study is likely to have nationwide implications for employers in the cannabis industry.
OSHA’s interest in occupational exposure to cannabis underscores the need for cannabis businesses to be attuned to workplace health and safety and prepared for government scrutiny of their workplaces. Although OSHA’s current regulatory landscape does not address cannabis explicitly, cannabis employers are subject to the same general requirement imposed on U.S. employers under OSHA’s “general duty clause,” that is, to provide their employees with a place of employment free from recognizable hazards that cause or are likely to cause death or serious harm to their employees. In addition, cannabis employers need to grapple with how current OSHA standards implicate the hazards specific to their industry, including biological and chemical hazards involved in the production process and cannabis itself.
OSHA may impose specific obligations on cannabis businesses to protect their employees from hazards in the workplace, including in the following areas:
- Hazard Communication – Cannabis industry employers whose workers are exposed to hazardous chemicals such as pesticides, fungicides or carbon dioxide may be obligated to comply with OSHA’s hazard communication standard. The hazard communication standard requires covered employers to, among other things, label hazardous chemicals and make accessible safety data sheets which provide specific information about the hazardous chemicals to which employees may be exposed.
- Respiratory Protection – Cannabis workers, particularly those involved in cultivation, extraction and trimming, face health risks arising from exposure to airborne contaminants, such as mold, yeast and fungi. OSHA’s respiratory protection standard imposes obligations on covered employers to protect against workers’ exposure to hazardous particles in the air through measures such as proper ventilation of the workspace and mandatory use of respirators (such as N-95 masks) by certain workers.
- Hazardous Energy – The unexpected release of hazardous energy is implicated in many aspects of cannabis operations, including in the servicing and maintenance of high-pressure machinery for extractions. OSHA’s lockout/tagout standard requires employers to train employees on, and have procedures in place to safeguard against, the inadvertent release of hazardous energy in the workplace. Failure to have effective lockout/tagout procedures may lead to serious workplace injuries, including amputation from accidental contact with moving parts of heavy machinery during maintenance activities. OSHA also requires employers to guard against electrical hazards from, for example, use of electrical tools in high humidity and watering areas.
- Flammable Liquids, Gases and Dust – Manufacturing of cannabis-infused products may expose workers to flammable liquids, like cooking oils to make edibles and flammable gas, like butane, when extracting hash oil from cannabis. OSHA requires employers to protect employees from fire hazards posed by flammable liquids and gases and combustible dust. By way of example, OSHA may require employers to label and store flammable liquids and regulate the use of portable fire extinguishers in the workplace.
- Personal Protective Equipment – Employees who have direct contact with cannabis and its byproducts—such as workers who trim marijuana flowers or use UV lamps in growing operations—may experience skin or eye irritation or more lasting negative health effects. OSHA requires employers to provide personal protective equipment (“PPE”), such as gloves, safety glasses, and earplugs, to their employees whenever higher levels of protection, such as engineering controls or work practices, are not feasible or do not adequately protect against a hazard.
In light of the many potential hazards in the cannabis workplace, employers in the cannabis industry should take immediate steps to enhance workplace health and safety, even if not legally required to do so. Employers may consider implementing the following measures as part of their overall health and safety efforts:
- Engage a consultant with appropriate expertise to identify potential hazards in the workplace – whether cannabis-related or not – and recommend specific action items to address the hazards.
- Provide live training of your employees on how to recognize and guard against potential health and safety hazards in your workplace.
- Conduct a job hazard analysis for each position in your workforce. OSHA provides examples and more information on developing a job hazard analysis.
- Ensure your employees know how to report workplace-related illnesses, accidents and safety concerns and encourage them to do so.
- Hold meetings with your employees to review safety issues and provide a forum for questions to be answered.
Cannabis businesses looking for workplace health and safety recommendations specific to their industry may want to review the guidance issued by agencies in California, Oregon and Colorado—states in which the cannabis industry is more established than other states due to earlier legalization of recreational cannabis.
In addition to the federal regulatory landscape under OSHA discussed above, cannabis employers may be subject to stricter workplace health and safety requirements under applicable state and local law. Mere allegations of violating such laws can mean steep financial, operational and reputational costs for cannabis businesses. Accordingly, maximizing workplace health and safety should be top of mind for cannabis growers, processes, distributors and retailers alike. As you set budgets and goals for your cannabis business in 2023, here’s to planning for a safe and healthy workplace.