OSHA to Consider Ground Cannabis to Be a “Hazardous Chemical”?
Despite the Occupational Safety and Health Administration’s failure to issue regulations specific to the cannabis industry, it appears, based on recent activity, that OSHA will regulate the cannabis workplace like any other. It also appears that OSHA may soon classify ground cannabis dust as a "hazardous chemical." The Occupational Safety and Health Administration (OSHA) recently investigated Trulieve, one of the largest multistate cannabis companies, following an employee’s fatal asthma attack. That employee was responsible for packaging ground cannabis into prerolls at a Trulieve facility in Massachusetts. On January 4, 2022, the 27-year-old employee (with no known history of asthma) suffered an asthma attack. She was rushed to the hospital and died days later. Within days of receiving Trulieve's report of the employee's hospitalization, OSHA initiated an investigation. On June 30, 2022, OSHA cited Trulieve for three violations of OSHA's Hazard Communication Standard (and proposed a penalty of $35,219). 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. The third was for failure to train employees about ground cannabis and other hazardous materials. After contesting the citation, Trulieve announced late last year that it settled the issue with OSHA through the agency’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 to $14,502. Other terms of the settlement may have broad implications for the cannabis industry and foretell OSHA’s position on cannabis and cannabis dust. As part of the settlement agreement, 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. Results are due on May 29, 2023.
OSHA 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."
Studies of occupational exposure to cannabis to date have been limited, partly because of the illegal status of cannabis under federal law. 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. However, because of the high rate of recreational cannabis use among the workers, researchers could not conclude occupational exposure to cannabis dust caused respiratory health and sensitization issues. In 2021, Washington state’s occupational health and safety agency published a summary of research findings on work-related asthma, including in the cannabis industry. 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. So what does this all mean for cannabis companies?
OSHA's investigation demonstrates that the status of cannabis as a controlled substance under federal law in no way restricts the federal agency's enforcement authority over the cannabis industry itself. Additionally, 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.
Finally, 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. If it is, cannabis employers will be required 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.