The cannabis industry is likely to be a target for regulatory and legal action due to its unique exposure and documented health risks.
By Erin Bass, Amy Rubenstein and Julie Vanneman, Dentons
In the United States, more than 440 000 full-time employees are employed by the legal cannabis sector (excluding hemp workers). Regulation and workplace safety issues are increasing as legalization grows.
Recent multi-state research led by Californian public health agencies, Massachusetts, Michigan and Washington and funded by the National Institute for Occupational Safety and Health, provides the most complete look at asthma related to work in the cannabis sector.
These findings indicate that there are new health issues and cannabis operators must review their compliance and safety measures.
The Data: Exposures to Health Risks and the Evolution of Concerns
In the period from legalization to 2023 in all states, 30 cases of confirmed work-related asthma among workers of cannabis industries have been reported. In most cases, males aged 18 to 34 were working in an indoor production or processing role. Two deaths were linked directly to occupational asthma at cannabis plants.
Most commonly reported exposures include:
- Cannabis plant powder and marijuana plant matter (by far, the majority reported cases);
- Molds and other microorganisms
- Cleansing and disinfection products, including those that contain hydrogen peroxide or peracetic acid.
- The physical factors are humidity, temperature, and cold.
The majority of cases occur within the initial three years after employment and about half develop symptoms in the first year. There was always a correlation between the symptoms and workplace, with symptoms increasing when exposed to work and decreasing without.
Regulation and Legal Implications – OSHA, Workers’ Compensation and Beyond
Cannabis operators can immediately implement the findings of this study to ensure compliance.
First, the increasing number of cases could lead to increased attention from OSHA and states. Cannabis operators may be familiar with the oversight provided by state compliance agencies for cannabis, but it’s important to remember that occupational safety and healthcare agencies also have a regulatory role.
The report stresses the need for cannabis users to recognize the established hierarchy of safety and health measures and take appropriate action.
- Elimination is the most effective way to control. It is not possible to completely eliminate all hazards associated with cannabis, but it is still possible to reduce or eliminate other risks, like exposure to disinfectants that are particularly harmful, and mold exposure. An analysis of job hazards could also identify high-dust processes and prioritise interventions.
- Engineering controls are the next level in hierarchy. They include steps such as local exhaust venting and HEPA filtering.
- Next, administrative controls. Next, administrative controls are needed.
- PPE (Personal Protective Equipment) can be implemented. During or after engineering controls, initiatives to mandate respirators may be taken into consideration.
Medical surveillance could also be used to identify symptoms earlier and eliminate the need for medical treatment or job relocation. The findings will likely lead regulators to review respiratory hazard control, training and surveillance programs.
The second possibility is that workers’ compensation programmes could be affected. Only about half of affected workers filed claims, and half of those were denied—often due to insufficient clinical documentation or under-recognition of the cannabis industry’s particular hazards. The cannabis industry is growing in awareness, so employers can expect to see more workers filing claims.
Employers must also consider the obligations they have to make reasonable accommodations in accordance with state laws and federal law. The ADA may consider a cannabis allergy to be a disability. An employer must engage with an employee who has a marijuana allergy that affects their ability to work. They will then determine whether reasonable accommodations can be made to allow the employee perform essential job functions. Accommodations could be as simple as providing PPE to the employee or moving them into another job.
The cannabis employer may face all of these issues at once. A worker with asthma that is related to their job could make a claim under workers’ comp, ask for an accommodation at the workplace, and then file a formal complaint. OSHA may still investigate even if an employer immediately offered the employee a reasonable accommodations that were acceptable, like a transfer to another position. OSHA could issue a citation that calls for additional workplace modifications beyond what was already done in response to an employee’s complaint.
Cannabis operators can take practical measures to ensure their safety.
Effective strategies for risk reduction and compliance can help reduce or prevent employer liability, and improve employee health. The following steps should be considered by operators and their associated parties.
- Perform a job hazard analysis: Determine high-risk jobs (e.g. grinding, trimming or cleaning) and prioritise controls.
- Improve ventilation and dust control: Install HEPA filters and local exhaust in the processing area.
- Consider Alternative Cleaning Chemicals. Avoid using disinfectants that can cause asthma.
- Implement Comprehensive Training: Train workers to recognize respiratory symptoms, and how to report them.
- Assist occupational health professionals in monitoring for the early signs of workplace asthma.
- Keep detailed records on incidents, including symptoms, exposures and actions taken to correct them.
Expect increased scrutiny and evolving standards
The unique risks of the cannabis industry and documented health issues will accelerate regulatory and litigation action.
Proactive compliance—mirroring best practices in other high-risk industries—will be essential to protect workers and limit liability. For cannabis workers, early detection and intervention are key to prevent asthma at work and ensure their long-term productivity and health. Like many emerging regulatory issues, these cases could predict trends in occupational health.
Erin Bass is a Dentons US LLP partner and specializes in Employment and Labor. Amy Rubenstein, a partner at the Health Care practice. Julie Vanneman is a shareholder in Dentons Cohen & Grigsby’s Environmental practice.