Last year, safety compliance in the cannabis industry took on a new dimension when the United States Occupational Safety and Health Administration (OSHA) cited production company Life Essence Inc, d/b/a Trulieve (Trulieve) for an employee’s fatal asthma attack following workplace exposure to ground cannabis dust (GCD). This first-of-its-kind citation has led to potentially expanded liability for cannabis producers who do not abide by OSHA’s guidelines for an industry illegal under federal law. And, therein lies the catch, as OSHA has few if any standards that directly and particularly apply to cannabis production establishments.

So, OSHA’s recent settlement of the Trulieve citation has generated a roadmap for other cannabis producers about the occupational inspection, training, and hazard controls producers should implement to avoid agency action—whether inquiry, investigation, or citation. To help industry stakeholders understand their safety compliance obligations moving forward, this three-part series will review and analyze the Truleive citation and its resolution, explain the compliance and hazard abatement measures producers should initiate, and outline how cannabis producers can contribute to the evolving regulatory landscape as scientists, proprietors, regulators, and advisors all try to identify hazards and develop applicable safety standards based on reliable and relevant data.

The Trulieve Incident

As a vertically integrated cannabis company, Trulieve owns and operates growers, processing facilities, and dispensaries in nine states. In January 2022, at Trulieve’s cannabis processing facility in Holyoke, Massachusetts, an employee suffered an eventually fatal asthma attack while packaging ground cannabis into pre-rolls. OSHA investigated the employee’s death looking for possible occupational hazards the employee may have been exposed to during the cannabis flower grinding process.

The OSHA Citation Following Employee Exposure to Ground Cannabis Dust

On June 30, 2022, OSHA reported its investigation findings to Trulieve: the employee died of occupational asthma due to exposure to ground cannabis dust. Based on that investigation, OSHA cited Trulieve for three “Serious” violations, claiming that the cannabis company did not comply with OSHA’s hazardous chemicals communications standards by:

• failing to compile a list of the hazardous chemicals in the facility, including ground cannabis dust (29 CFR 1910.1200(e)(1)(i));
• failing to obtain or develop a safety data sheet for hazardous chemicals such as ground cannabis dust (29 CFR 1910.1200(g)(1)); and 
• not providing employees effective information and training on hazardous chemicals in their work area (29 CFR 1910.1200(h)(1).

OSHA claimed that employees working in the production facility should have received effective information and training on GCD’s hazards, such as exposure prevention, signs and symptoms of inhalation hazards involving the respiratory tract (including allergic reactions like nasal congestion, coughing, shortness of breath or asthma), and skin contact including irritation, itching, and/or hives, along with the medical evaluation needed should symptoms develop.

In response, Truleive contested all citation violations and the $35,219 penalty. Trulieve had good reason to do so. All three regulations identified in the violations concern “hazardous chemicals”—here GCD. In other words, OSHA based its citation on the premise that GCD qualified as a hazardous chemical. Under OSHA’s regulations, however, a hazardous chemical is a chemical that is classified as a hazard based on specific criteria. Whether a chemical satisfies such criteria to qualify as a hazard depends on scientific data, research, and literature. OSHA’s citation against Trulieve did not contain or identify any basis by which GCD met the criteria for a hazardous chemical.

OSHA Issues Hazard Alert Letter With Recommendations to Protect Employees From GCD Hazards

Concurrent with the Citation, OSHA issued Trulieve a Hazard Alert Letter (HAL) explaining that OSHA would not cite Trulieve for violating the OSHA Act’s “general duty clause” for failing to protect employees from GCD exposure hazards*.  Instead, OSHA directed Trulieve to research that suggested GCD may put employees at risk for developing occupational cannabis allergies that may involve symptoms such as upper airway congestion and nose irritation, skin irritation or hives, asthma, coughing, wheezing, or shortness of breath. 

OSHA also recommended Trulieve implement certain “feasible methods” to protect employees from the hazards of GCD exposure:

• a medical surveillance program for pre-placement, periodic, and termination examinations under the direction of a healthcare provider with expertise in occupational allergy;
• a Health Hazard Evaluation (HHE) performed by the National Institute for Occupational Safety and Health (NIOSH);
• job transfer options for employees with allergies, including cannabis allergies;
• employee training on the signs and symptoms of skin and upper and lower respiratory tract allergies (hives, nasal congestion, asthma) possibly related to GCD exposure, which a qualified healthcare provider should help develop;
• grinder ventilation options including using local exhaust or an isolated room, vacuuming with a HEPA filter equipped device, reducing skin contact with the product, or otherwise taking steps to reduce GCD exposure; 
• ensuring that an emergency response team is trained and certified in CPR and use of AEDs; and
• protecting employees from combustible dust hazards by determining whether ground cannabis is a combustible dust and using appropriate equipment and cleaning products to minimize the possibility of fire or explosion.

None of these directives pertain to any detailed or express standards addressing acceptable levels of ground cannabis, occupational hazards from GCD, or cannabis production processes. OSHA has no such standards, likely because federal law still classifies cannabis as a controlled substance. 

Nonetheless, a hazard alert letter has essentially the same legal effect such regulations would have. Like most such letters, the Trulieve HAL contains a promise from OSHA to return to the facility and conduct a follow-up inspection. Where such an inspection reveals measures in the HAL not enacted, a citation for one or more general duty clause violations likely will follow. Contesting such a citation requires showing that the particular failures to comply with the HAL did not create a dangerous workplace. To do so, an employer should perform an alternative investigation and implement related safety measures showing the employer addressed the hazards OSHA identified, all of which requires investing money and time. Often times, however, employers find just following the HAL the easier and more cost-effective option. In this way, a hazard alert letter carries significant weight in determining industry safety standards, as Trulieve’s settlement with OSHA reflects.

Trulieve and OSHA Reach Historic Settlement, Shedding Light of Possible Path for Litigation Avoidance

Roughly six months into the citation contest and litigation, Trulieve and OSHA reached a settlement, the terms of which may impact other commercial cannabis producers. OSHA agreed to vacate all the three hazard communication violations, but in exchange Trulieve agreed to accept an entirely new violation for failing to determine whether GCD qualifies as a hazardous chemical. Trulieve also confirmed its agreement to adopt several novel safety measures, many of which are based on the HAL:

• undertake a study to determine whether GCD qualifies as a “hazardous chemical” under OSHA hazard communications regulations;
• engage a health professional to develop a program that gives workers guidance on managing potential occupational health impacts from GCD exposure, including allergic sensitization;
• explore having NIOSH conduct an HHE;
• revise employment policies to include job transfer options;
• create an employee information and training program to inform workers about potential allergic sensitization, and its symptoms, from working with GCD in an occupational setting and steps employees should take if they experience such responses;
• investigate options for engineering controls, such as isolating commercial grinding areas and other locations with high GCD concentrations;
• establish a policy requiring the Holyoke facility to have at least one worker at every shift trained in first aid and AED use; and
• determine whether cannabis qualifies as a combustible dust and implement measures accordingly.

In the unlikely event Trulieve determines that commercially produced GCD meets the criteria for a hazardous chemical under OSHA’s regulations, then likely the entire industry will need to ensure their full compliance with all hazard communication requirements. But, even if Trulieve does not deem GCD a hazardous chemical, resolution of the Trulieve citation impacts all cannabis producers. Because the measures in the Trulieve settlement reflect (in part) OSHA’s expectations of reasonable safety measures that employers should be taking in this industry, we expect OSHA to use this settlement and HAL as a blueprint for establishing safety requirements for all cannabis producers. 

Next Steps

The Trulieve settlement provides guidance for cannabis industry employers about safety requirements for commercial cannabis production, especially potential occupational allergies from GCD. Implementing the requirements outlined in the HAL and the Trulieve settlement promotes not only regulatory compliance, but also employee safety, vital to any business’s success. With that in mind, the next article in this series will discuss in detail the measures cannabis produces can employ to meet the implicit standards emerging from the Trulieve incident.

* The “general duty clause” requires employers to provide a place of employment free from recognized hazards that pose a risk of death or serious physical harm to employees,