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Cannabis Worker’s Death Triggers Closer OSHA Industry Scrutiny

Nov. 2, 2022, 9:30 AM

The marijuana industry is on notice from OSHA to improve how workers are protected following the asthma-related death of a Boston woman whose job involved grinding and handling cannabis.

The worker at Trulieve Inc.'s Holyoke, Mass., processing factory died Jan. 7 following exposure to “occupational quantities of whole and ground cannabis,” according to an Occupational Safety and Health Administration hazard alert letter issued in June along with citations.

While OSHA’s immediate enforcement actions apply to just one facility where the woman worked, they signal the agency is taking a closer look at protecting workers at cannabis growers, processors, and retailers as the industry grows exponentially.

“The federal government is making it clear that the cannabis industry is subject to its oversight and will be treated like any other legitimate business in this context, notwithstanding the federal illegality of marijuana,” said Heidi Urness, chair of the cannabis practice group at McGlinchey Stafford PLLC in Seattle.

VIDEO: How Marijuana Is Both Legal and Illegal in the US

Health Is a Concern

OSHA actions also tie in with the agency paying more attention to health and illness concerns such as its enforcing silica and Covid health standards, not just injuries, said Brian Hendrix, a partner with Husch Blackwell LLP in Washington.

“I don’t see this as specific to cannabis, I think it is specific to health,” Hendrix said.

Federal OSHA’s push may not be felt nationwide.

Many of the states that were in the first wave of recreational marijuana legalization such as Oregon and Washington have their own state worker safety programs and published guidance for the industry, said attorney Jesse Mondry, whose practice at Harris Bricken Sliwoski LLP in Portland, Ore., focuses on cannabis issues.

Also, each state’s cannabis industry is already heavily regulated and licensed with worker conditions often part of the requirements, he said.

The Trulieve citation and hazard alert letter stand out because they seem to break new ground for federal OSHA—treating cannabis itself as a hazardous material and advising the employer to set up a medical surveillance program to track if workers show signs of asthma or other allergic reactions.

General Duty Justification?

The hazard alert letter by itself won’t likely open the door for OSHA to issue general duty clause violations to employers for not protecting workers from cannabis dust, said Adam Young, a partner with Seyfarth Shaw LLP in Chicago, whose practice includes OSHA and cannabis law.

For OSHA to reach the general duty clause threshold, Young said, the agency would likely need to take additional steps to make employers aware of the concerns such as issuing a safety and health information bulletin or standard interpretation letter.

Previously, when OSHA previously cited employers, the alleged violations often involved hazards common to many industries, said Hendrix.

For example, in June OSHA cited PharmaCann Inc. for problems at a greenhouse complex in Montgomery, N.Y. The agency said employees couldn’t exit through locked and blocked doors, harvesting equipment could tip over onto workers, and no safety data sheets were present for a cleaning chemical, sodium bicarbonate.

OSHA and PharmaCann settled the case with the company agreeing to pay an $18,853 fine and OSHA dropping the chemical violations.

Educate Workers on Risks

The Trulieve citation said the company should have created a list of hazardous chemicals, including ground cannabis produced by grinding marijuana flowers, and obtained safety data sheets for the chemicals.

Safety data sheets are documents OSHA requires for chemicals and combustible dusts in commercial quantities that spell out the product’s dangers and precautions people handling the product should follow. In the cannabis industry, safety data sheets are common for liquid products produced from plants, such as cannabis oils, but not for the plants themselves.

OSHA also said Trulieve should have provided workers information and effective training to protect them from dangerous exposure to ground cannabis and recognize when they were showing symptoms of overexposure such as allergic reactions.

Trulieve also should improve ventilation, set up a medical surveillance program to monitor workers for allergic reactions, and allow workers with allergic reactions to change duties, OSHA’s separate hazard alert letter recommends.

The company has filed a challenge to the citations with the independent Occupational Safety and Health Review Commission.

Company spokesperson Steven Vancore wouldn’t discuss what specific safety and health program improvements Trulieve is making in response to the OSHA citation and letter.

“As OSHA has recognized, our industry is relatively young and we are working with OSHA to define the best ways to protect workers,” Vancore said in a written statement to Bloomberg Law.

Linking Cannabis to Asthma

The hazard alert letter references two recent medical studies of cannabis workers in Washington state, where recreational marijuana has been legal since 2012, having occupational allergic reactions to cannabis.

A 2020 study by health researchers from the University of Washington found that 13 of 31 workers at an indoor facility that grows and dries marijuana had symptoms associated with asthma. However, the researchers couldn’t determine how much the workers’ personal use of marijuana contributed to the symptoms.

Washington’s Department of Labor and Industries in 2021 released a study that used the state’s workers’ compensation insurance records to identify seven job-related asthma cases among cannabis industry workers from 2015 through 2019.

That cannabis dust could trigger an asthmatic reaction wasn’t a surprise, said the report’s co-author Carolyn Whitaker, principal investigator with the state’s Safety & Health Assessment & Research for Prevention Program.

A wide range of airborne dusts from plants such as red cedar trees and plant products such as baking flour can cause asthma, Whitaker said.

Not yet known about cannabis and asthma is what causes the reaction, she said. That means there are no permissible exposure levels employers and regulators can use to determine how much exposure becomes a hazard.

Whitaker recommended employers follow common dust prevention measures such as determining which tasks produce dust and then try to trap the dust at that point. Exposure to workers not directly in contact with the dust can be done by limiting processing tasks to enclosed rooms and installing ventilation filters that capture it.

And cleaning up should be done with vacuums and wet mops, not dry brooms that could launch settled dust into the air, she said.

“This is not nuisance sniffle or a sneeze. It can lead to a chronic cough, shortness of breath, and chest tightness,” Whitaker said of the respiratory hazards. “Workers, they won’t have their full health.”

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editor responsible for this story: Rebekah Mintzer at rmintzer@bloombergindustry.com