Cannabis cultivators and producers should pay close attention to a recent report from the U.S. Centers for Disease Control and Prevention (CDC) on a death attributed to occupational asthma, as well as an even more extensive discussion about the same event in a report published by the Massachusetts Department of Public Health (the “Massachusetts Report”). The report from the CDC (the “CDC Report”) provides a thorough review of the 2022 death of an employee of a cannabis cultivation and processing facility. Crucially, the CDC Report also provides specific recommendations for steps to reduce workplace risks. It will be important for companies in the industry to consider these recommendations and determine the best approach for their operations.

Key Takeaways from the CDC Report

• Recognize the significance of the reports—employers should be aware of the issues raised and consider any action steps needed in response. The CDC Report is not just a summary of one incident. It reviews the research on occupational health hazards associated with cannabis exposure and identifies strategies for responding to potential allergic responses in the workplace. Employers in the industry should be aware of these issues and consider how they might need to change their operations accordingly. While the CDC Report outlines many possible steps, all require awareness, so education and training—for everyone from top management to employees grinding cannabis flowers—will be critical. The Massachusetts Report also emphasizes the importance of education and training as one of its six recommendations.
• Recognize the limitations of the reports—they apply to occupational exposure, not personal use. The CDC concludes that work exposure to cannabis is “potentially causative” for asthma. The CDC was not studying or making recommendations about personal use of cannabis. It is important not to extrapolate conclusions in the reports to contexts that they do not address.
• Appreciate potential legal implications. The CDC Report could prompt an employer to revisit employment policies related to health concerns in the workplace. When doing so, employers should carefully consider legal issues, including implications for reasonable accommodations and privacy considerations related to a medical surveillance program. 
• Be prepared for regulatory enforcement. OSHA and related state agencies will pay close attention to the reports. Companies in the industry should proactively prepare for potential enforcement, whether instigated by an employee complaint, an incident, or an unprompted inspection. If OSHA does come calling, it is best to act quickly to prepare an effective defense. 

The CDC Report—Summary and Recommendations

On November 17, 2023, the CDC published an article in the Morbidity and Mortality Weekly Report on an investigation of the death of a worker at a cannabis production company. A cannabis cultivation and processing facility employee experienced “progressively worsening work-associated respiratory symptoms, which culminated in a fatal asthma attack in January 2022.” (CDC Report, at 1257.)

The employee had been wearing an N95 respirator, long sleeves, and gloves, and efforts had been made to reduce her exposure to cannabis dust, such as by moving her workstation outside the grinder room. After the death in January 2022, the company connected the grinder to a new shop vacuum with HEPA filtration. The Occupational Safety and Health Administration (OSHA) conducted personal air sampling as part of its post-incident inspection. Results for respirable dust concentration in air were either nondetectable or below OSHA’s permissible exposure limit, and results for endotoxin levels were below a benchmark for that substance.

As part of its report, the CDC reviewed previous research on occupational allergy symptoms in cannabis production facilities. Symptoms found in cannabis production workers have included asthma, allergic rhinitis, and urticaria (hives). The CDC concluded that work in cannabis production facilities is “potentially causative”—that is, asthma could be caused by workplace exposure to cannabis.

Based on previous research, as well as the case study of the 2022 event, the CDC identified measures that could help protect cannabis industry employees from occupational health hazards. Overall, the CDC’s message is that companies should take a “multifaceted approach” to prevention. Examples of recommended measures include the following:

• Assessing exposures—identifying areas of potential exposure to cannabis dust;
• Implementing environmental and procedural controls—installing equipment, such as exhaust fans, to mitigate risks from processes that produce cannabis dust, and changing procedures, such as avoiding dry sweeping of dust;
• Utilizing personal protective equipment (PPE)—requiring that employees wear appropriate PPE, including respiratory protection as needed, with the caveat that PPE might not be effective for employees who show signs of work-related allergies;
• Providing training—ensuring that employees know how to recognize signs and symptoms of occupational allergy, seek medical attention where necessary, and use work processes that minimize exposures;
• Set up medical surveillance—at the direction of health care providers with expertise in the area, pay attention to early signs of occupational allergy; and
• Implement appropriate medical management and workers’ compensation—require workplace restrictions as necessary and recognize the potential for claims based on work-related allergic sensitization to cannabis.

The Massachusetts Report makes similar points, such as in its recommendations about training and medical surveillance. When discussing the importance of controlling hazardous substances in the workplace and providing training on workplace hazards, the Massachusetts Report specifically highlighted the relevance of OSHA’s hazard communication standard and concluded that grinding operations at the facility “created a concentration of the potent combination of the plant at volumes such that it should have been treated as hazardous.” (Massachusetts Report, at 13.)

Implications for the Cannabis Industry

The CDC Report summarizes the facts of the 2022 death—which the industry had general awareness of—and it ties together previous research with new learnings based on the case study. The critical new piece is the “Box” on page 4 titled “Measures for protecting cannabis industry employees from occupational hazards—United States, 2023.” Why are these 19 bullet points so important to the industry? 

Employee protection

Companies need to protect their employees from health impacts based on workplace exposure to hazards. These recommendations provide a road map for companies seeking to take the recommended “multifaceted approach” to prevent future incidents, as well as address less severe but still significant health impacts.

Elevated responses

The measures recommended by the CDC may surprise cannabis companies. This is not a list that simply recommends wearing gloves or masks—though, given recommended approaches to workplace health and safety, that strategy would never have been the first choice. The CDC identifies measures that could entail significant expenses. For example, engineering changes could require new equipment, and implementing medical surveillance programs would entail engaging experienced health care providers. Cannabis companies should determine the best approach based on their specific situation.

Regulatory enforcement

As the heavily-regulated cannabis industry matures, more traditional regulatory bodies, like OSHA, will assert their influence—and both reports provide a basis for increased attention from OSHA.

Widespread reporting about the CDC’s conclusions could prompt employees to file complaints with OSHA about alleged hazards in the workplace, leading to OSHA investigations even when there has not been an underlying incident.

The list in the CDC Report could impact enforcement. OSHA has not issued a specific standard addressing allergic reactions to cannabis in the workplace. But OSHA can also conduct enforcement based on the “General Duty Clause” of the Occupational Safety and Health Act. (Related state agencies administering OSHA-approved State Plans can take the same approach.) Sustaining this type of citation requires OSHA to prove that there was a recognized health hazard in the workplace; employees were exposed to the hazard, which was likely to cause death or serious physical harm; and there were feasible methods of correcting the hazard. The CDC Report summarizes known health impacts, which makes it more likely that OSHA would be able to prove this type of violation. And the list of recommended measures could help OSHA establish that there are feasible means of abating that hazard. 

Further, even though there are no OSHA standards unique to cannabis, there are many specific standards that could apply to cannabis workplaces, such as the Hazard Communication standard and PPE standards. The CDC list is new, but longstanding guidance on health and safety matters is not. For example, guidance already exists on containing dust, such as implementing housekeeping measures for health reasons and minimizing explosive risks based on potential combustibility. Increased OSHA attention could result in regulatory enforcement activity not just for the 19 recommendations in the list, but also for adherence to health and safety principles more generally.

Employee and labor relations

The CDC Report will not go unnoticed by employees and their representatives—that is, it could prompt employees to seek changes at their workplaces, and for labor unions to demand that employers take action as part of their collective bargaining strategies. The 19 bullet points provide concrete action items that could be demanded of employers. 

Reasonable accommodations analysis

The recommended measures have many implications for legal strategies in responding to a potential workplace health hazard. One such area involves disabilities. Generally, employers and employees must work together in an interactive process to determine whether accommodations may be available for employees with disabilities. In this context, employers will need to determine if reasonable accommodations can be made when an employee has an allergy to cannabis. Requiring PPE might be a response. But the CDC states that PPE “might not be effective for persons with signs and symptoms of work-related allergies.” (CDC Report, Box, p. 1260.) Further, the CDC emphasizes that there could be “work-related triggers of asthma and other allergic signs and symptoms” even when airborne respirable dust and endotoxin levels are below occupational limits. (CDC Report, p. 1258, footnote.) 

The message is that a facility could have excellent engineering controls and rigorous housekeeping measures designed to reduce dust, yet still contain enough allergens to trigger reactions for some employees. Thus, medical management of employees with work-related symptoms “might require cessation of work” in the facility. (CDC Report, p. 1259.) This conclusion has important ramifications for employers trying to prepare a legally defensible argument that employment must be terminated because there is no safe way to work at the facility. 

Next Steps

The two reports are not the final words on the topic. The CDC Report acknowledged the need for more research, as did a recent post on cannabis allergies from the National Institute of Occupational Safety and Health. There is sure to be more information available about “lessons learned” in implementing measures as well as recommendations for new approaches.

While research continues, and awareness is raised regarding potential health impacts of occupational exposure to cannabis, employers should recognize that regulators will expect that the industry knows about these two reports. Therefore, proactive steps taken now will be important in the event of regulatory enforcement activity.

Dentons’ cross-disciplinary cannabis team stays up-to-date with developments impacting your business and includes employment and labor lawyers with specific expertise in helping cannabis cultivation and production companies address occupational health and safety concerns. Please reach out to one of the contacts listed on this alert for further guidance and to make a plan for your business.