Headshot courtesy Frantz Ward
The exponential growth of the cannabis industry across the United States in recent years is not news to many. Thanks to expanding legalization and an influx of investment, regulated cannabis sales could top more than $31.4 billion in 2024—an increase of more than 9% from the year 2023, according to Whitney Economics. There has been no shortage of challenges along the way and many still exist, including federal oversight of occupational health and safety for cannabis industry workers. While the Occupational Health and Safety Administration (OSHA) has few (if any) standards that directly apply to the cannabis industry, OSHA has taken a recent interest in cannabis worker safety and has begun to enforce existing federal workplace safety standards against cultivators, processors, and retailers.
As cannabis employers (and a few OSHA compliance officers) will tell you, however, OSHA finds itself at a distinct disadvantage due to its unfamiliarity with the industry and lack of research regarding workplace hazards potentially caused by the cultivation, harvesting and processing of cannabis. This lack of understanding is based largely on the federal government’s longstanding resistance to the legalization and reclassification of cannabis. It was only this year—almost three decades after California legalized medical cannabis—that the U.S. Department of Justice announced its intent to downgrade the drug’s status under the Controlled Substances Act from Schedule I (i.e., “drugs with no currently accepted medical use”) to Schedule III. This delay has hampered OSHA’s ability to effectively utilize its research arm—the National Institute for Occupational Safety and Health (NIOSH)—to conduct research and make recommendations on the prevention of work-related injuries and illness.
Since the late 1960s, United States researchers have only been allowed to study cannabis from a single domestic source: the government-owned plants grown in a facility located at the University of Mississippi operated under the supervision of the National Institute on Drug Abuse (NIDA). Although the Drug Enforcement Administration (DEA) has recently allowed other American cannabis companies to register with the DEA to grow and produce cannabis for medical and scientific research, the federal government is still years and perhaps decades away from the ability to produce clinical research regarding the cannabis plant’s and different cultivars’ various health effects.
As a result, many cannabis companies facing OSHA investigations have found themselves in the position of having to educate OSHA compliance officers about their industry and sometimes faced with citations aptly described using the “square peg/round hole” metaphor. For example, in June 2022, OSHA cited Trulieve Holyoke Holdings, LLC d/b/a Trulieve, over the death of a Massachusetts employee who was packaging pre-rolls. The OSHA investigation found that she had inhaled ground cannabis dust and had died of occupational asthma, citing Trulieve for three violations of OSHA’s Hazard Communication Standard and treating ground cannabis dust as a “hazardous chemical.” OSHA’s position was that ground cannabis should have been listed in Trulieve’s hazardous chemical list, Trulieve should have had a safety data sheet available to employees identifying the hazards of ground cannabis and procedures to ensure safety when using it, and Trulieve should have trained employees about ground cannabis and other hazardous materials. Trulieve contested all three citations. It argued that ground cannabis did not meet OSHA’s criteria for a “hazardous chemical” because OSHA could not identify any scientific data, research, or literature to support any correlation between ground cannabis and the employee’s asthmatic reaction. Ultimately, Trulieve and OSHA agreed to resolve the citations, with OSHA withdrawing two citations and Trulieve (not OSHA) agreeing to perform a study to determine whether ground cannabis dust should be classified as a “hazardous chemical.”
Since then, OSHA has paid closer attention to the cannabis industry and its own framework for classifying hazards. Earlier this year, OSHA hosted a webinar titled “OSHA Enforcement and Guidance on Protecting Workers within the Cannabis Industry” with comments from an OSHA industrial hygienist and an OSHA medical officer who summarized their thought process on potential hazards with grower employees (exposure to biological elements like mold, chemicals or pesticides), processor employees (exposure to flammable solvents or indoor air-quality issues), and retail employees (exposure to allergens and potential workplace violence).
The presentation also referenced other OSHA standards in agriculture that might offer cannabis employers comparable practices and procedures to ensure workplace safety. As an example, OSHA referred to NIOSH’s “Recommended Practices: Green Tobacco Sickness”—a form of nicotine poisoning that workers who plant, cultivate, and harvest tobacco are at risk of suffering. The presentation also noted common General Industry hazards, such as mold, indoor air quality, respiratory dusts, flammable liquids, cleaning chemicals, and noise, that the agriculture, tobacco and grain industries may share with cannabis.
Regardless of OSHA’s level of preparedness, cannabis employers should be prepared for increased OSHA enforcement activity in the industry and take appropriate steps to ensure worker safety, as appropriate, including consulting with experienced OSHA defense counsel and environment, health and safety (EHS) professionals to address known hazards in their workplaces.
Christina Niro is partner at Frantz Ward LLP. She advises and represents employers in a broad range of employment law matters—from discrimination, retaliation, wrongful discharge, and harassment cases, to contract disputes, restrictive covenants, trade secret theft and misappropriation, and unfair competition—and provides employers of all sizes with preventive counseling on topics such as FMLA and ADA compliance, compliance with state and federal cannabis laws, employee discipline, litigation prevention strategies, and employee handbook and policy development. Niro is OSHA 30 certified and regularly advises employers regarding Occupational Safety and Health Act compliance, including representing employers during on-site OSHA inspections and informal settlement conferences, negotiating and resolving OSHA citations/penalties, and defending employers at administrative hearings with the OSHA Review Commission and related litigation. She also assists clients with the preparation and implementation of written safety programs.
