This article originally appeared on JordanBarab.com
Last January 4, 2022, 27-year-old Lorna McMurrey went into cardiac arrest at Trulieve’s cannabis cultivation facility in Holyoke, Massachusetts and died several days later at Baystate Medical Center. The cause of death was occupational asthma.
According to her parents, Lorna had been coughing constantly in the weeks leading up to her death. The Boston Globe reported that Dave Bruneau, McMurrey’s stepfather, said McMurrey asked him to bring her respirators from his job as a mechanic several weeks before she died.
And according to workers in the facility, Trulieve management was anything but mellow about worker concerns:
Danny Carson, a former supervisor at the Holyoke plant who hired McMurrey the summer before her death, said Trulieve only provided paper, medical-type masks to workers. He said the multi-state pot conglomerate failed to properly train workers and created what he called a culture of silence in which employees were afraid to speak up about safety concerns. He said he quit in August 2021.
Following McMurrey’s death, OSHA inspected the facility and on June 30, the agency cited Trulieve, with a total penalty of $35,219 for three serious violations of OSHA’s hazard communication standard. OSHA alleged that Trulieve did not compile a list of hazardous chemicals in the facility, failed to obtain or develop safety data sheets for each hazardous chemical that workers were exposed to, and did not provide employees with effective information and training about working with hazardous chemicals. The citation for failure to compile a list of chemicals was $6,215, and the other two violations carried the maximum serious penalty of $14,502 each.
Following McMurrey’s death from cannabis-related occupational asthma, OSHA inspected the facility and on June 30, the agency cited Trulieve, with a total penalty of $35,219 for three serious violations of OSHA’s hazard communication standard.
The Massachusetts Cannabis Control Commission reported that it is investigating the McMurrey’s death and that “State regulations require licensees to maintain sanitary conditions in their facilities and report public safety incidents.”
Trulieve is contesting the OSHA citations although the company has been cited twice by OSHA before for not reporting a hospitalization and for violating respiratory-protection and hazard-communication standards.
Meanwhile, UFCW Local 1445 has filed for a vote for union representation at the facility and workers at Trulieve’s Pennsylvania facility voted for union representation last month. UFCW has styled itself as the Cannabis Workers Union, representing “tens of thousands of cannabis workers across the US in dispensaries, labs, delivery, kitchens, manufacturing, processing, grow facilities and more — helping workers secure better wages, protection from unfair discipline, and great benefits with a union contract.”
Hazard Alert Letter
OSHA has no standard directly pertaining marijuana cultivation or processing. In addition to HazCom, OSHA could potentially cited under the respirator standard or the General Duty Clause (GDC), which requires employers to maintain a safe workplace and which OSHA can use for enforcement where there is no specific standard.
Every OSHA case is unique and it’s sometimes hard to tell from the outside in difficult cases why OSHA chose to use one standard, but not another. In this case, it is clear that OSHA chose not to issue a General Duty Clause citation to Trulieve. General Duty Clause citations are legally burdensome and vulnerable to legal challenge, especially when dealing with “new” hazards. In this case, OSHA apparently determined that there wasn’t enough evidence to sustain a GDC violation if it was challenged in court.
Instead, OSHA issued a Hazard Alert Letter (HAL) to Trulieve which recommended measures the company should take to prevent future illness ” in the interest of workplace safety and health”.
The HAL recommended that Truleive:
- Conduct medical surveillance, including pre-placement, periodic, and termination examinations
- A Health Hazard Evaluation (HHE) should be performed by the National Institute for Occupational Safety and Health (NIOSH) to perform evaluations of workers, which include spirometry, and allergen testing. (NIOSH has conducted Health Hazard Evaluations of cannabis workplaces (here and here.)
- Providing job transfer options for allergic employees (Note: a reporter asked McMurrey’s mother why she didn’t just leave her job. Her mother responded that “You can say ‘Why didn’t you just quit,’ but you know it’s not easy to find a job. She was making good money and she really enjoyed working there.” In addition, it is the employers job to make the workplace safe, not the workers responsibility to choose between her job and her life.)
- Provide training on the signs and symptoms of allergies involving the upper and/or lower respiratory tract and/or skin. (Occupational allergies often start with minimal symptoms, but can progress, with continued exposure, to life-threatening conditions if exposure isn’t reduced to eliminated.)
- Prevent exposures by providing ventilation for the grinders including local exhaust ventilation or isolating workers in a clean room to reduce exposure. Vacuuming with a HEPA filter would reduce exposure generated better than sweeping. Skin contact reduction may also be needed.
- Establish an emergency response team trained and certified in CPR and use of AEDs
- Address workers’ compensation issues
The letter also added a request “to evaluate your efforts in reducing these hazards,[and send] a letter detailing the actions you have taken, or plan to institute, to address our concerns by August 5, 2022. ”
Although federal OSHA has been slow to address hazards in the cannabis industry, other states have acted.
Colorado was the first state to issue an occupational safety and health webpage and guide in 2017 to educate employers and employees in the marijuana industry on the biological, physical and chemical hazards of the cannabis industry. Colorado, however, does not have its own OSHA program making enforcement difficult. The guide covers mold hazards as well as sensitizers and allergens and lists the following best practices:
● The most effective exposure control is to eliminate the exposure but this approach may not work in all situations.
● Engineering controls such as local ventilation can assist in controlling airborne exposures to dusts or chemical mists or vapors.
● Exposure controls at the worker level include work scheduling, job rotation, and worker training.
● Determine if direct contact with plants can be controlled first by the above mentioned elimination, engineering, or administrative controls.
Most of Colorado’s safety materials seem to address consumer safety, although there are alerts that address worker hazards, such as heavy metals.
Cannabis can cause a severe allergic reaction called anaphylaxis. This condition can be life threatening and occurs within seconds or minutes of exposure — Oregon OSHA
cannabis can cause a severe allergic reaction called anaphylaxis. This condition can be life threatening and occurs within seconds or minutes of exposure….Sensitive workers who handle cannabis should use impervious coveralls, nitrile gloves, and N95 or N100 filtering face-piece respirators (dust masks) to reduce allergy symptoms. Employees experiencing serious allergic reactions should seek immediate medical attention. Allergic reactions are recordable events on the OSHA 300 log.
California has a fact sheet on the hazards of cannabis production which lists a number of hazards associated with cultivation, manufacture, distribution, sales, and testing of marijuana products. The Fact Sheet lists a number of CalOSHA standard that employers in the industry must comply with, including hazard communication, electrical hazards, exposures to airborne contaminants, flammable liquids and gases, hazardous energy – lockout/tagout, heat illness prevention, machine hazards, personal protective equipment, point of operation hazards, pressure vessels, prohibition of smoking in the workplace, repetitive motion injuries, sanitation and pest control, slips, trips, falls and use of ladders.
CalOSHA also has an Injury and Illness Prevention Program (IIPP) which requires employers to establish, implement, and maintain an effective written IIPP that includes procedures to identify and correct health and safety hazards in the workplace, provide effective training to all employees so they can perform their job safely and other elements.
In 2018, the CalOSHA issued a report identifying a number of health and safety issues related to cannabis, including secondhand marijuana smoke, combustion, inhalation of harmful substances, armed robbery, and repetitive strain injuries and the lack of sufficient training for employees. UFCW, among others, had lobbied for a standard covering cannabis workers. They concluded that current standards already covered all of the issues with the possible exception of second-hand smoke.
Cannabis harvesters exist in one of the deepest cracks in U.S. labor law: undocumented agricultural workers at an off-the-books worksite in an illegal industry.
Other states, such as Washington, also have cannabis workplace safety websites. The Washington Department of Labor has also conducted a survey of cannabis exposure hazards, finding that cases of cannabis-related asthma had increased since legalization.
Other Labor Issues
Meanwhile, health and safety issues are not the only problem plaguing cannabis workers. Natalie Fertig and Elanor Mueller at Politico describe ongoing exploitation, including trafficking and forced labor, of immigrant workers in the illegal cannabis industry — mostly in Oregon and California. Illegal operations market marijuana in states where it is not yet legalized or at cheaper prices than where it is legalized:
The women slept in tents, washed their dishes with hoses, used overflowing portable toilets and ate mostly rice cooked under tarps. There was often no electricity or potable water. The men working alongside them menaced them with sexually aggressive remarks — and getting paid the wages they hoped to send back to family in Michoacán, Mexico was the exception, not the rule. “We were so afraid,” Leticia said. “I slept with one eye open and one eye closed.”
If you buy marijuana illegally somewhere in the U.S., there is a very good chance that it was grown by people like Isabella, Maria and Leticia. The women exist in one of the deepest cracks in U.S. labor law: undocumented agricultural workers at an off-the-books worksite in an illegal industry.
Male workers “spoke about how they would grab women,” Leticia said. “We had no idea who could enter whenever we would go to sleep.”
Two farms prevented them from leaving. Everywhere, they lived in extreme fear of those around them, particularly the armed guards. The women recall one farm they worked at, high in the mountains. There were men there with rifles, who told them they couldn’t leave. The women worked there for two months before finally getting away — again, without pay.
But they say that all of this could have been worth it — if they had actually received the money they were promised, which they desperately wanted to send back to family in Mexico.
What Is To Be Done?
With nineteen states having legalized recreational marijuana since 2012, the cannabis industry is growing rapidly, along with worker hazards. Clearly much more needs to be done by federal OSHA as well as OSHA state plans to protect workers in the industry.
While several states have taken the initiative protecting workers from hazards associated with the cannabis industry, federal OSHA seems a bit behind the curve. The first step for the agency is obviously to follow the path of the states mentioned above and develop educational materials that point out the hazards of cannabis, how to prevent them and what standards apply.
OSHA also needs to develop a more effective enforcement strategy. While the citations written to Trulieve were not insubstantial, they were limited to the hazard communication standard. Although there is no standard that specifically applies to marijuana processing, or the specific chemicals that may have been involved in McMurrey’s death, OSHA declined to use the respirator standard or General Duty Clause, choosing to send a Hazard Alert Letter instead.
Given the guidance provided by several states as well as a growing number of studies showing the hazards of cannabis dust (for example here and here), it seems that a General Duty Clause citations might have been justified. That being said, as I mentioned above, Department of Labor solicitors are always hesitant to use the the General Duty Clause, especially when applied to “new” issues, and it’s hard to judge their decisions from the outside.
Press releases are more than technical exercises, they are also messaging tools.
Another major problem was OSHA’s failure to issue a press release covering the citations. The total amount of penalties may not have reached the threshold that OSHA uses to determine whether or not to issue a press release, but press releases are more than technical exercises, they are also messaging tools. During the Obama administration, the general rule was to only issue press releases when penalties exceeded $40,000, but we also issued press releases for citations that carried much smaller penalties when we wanted to draw national attention to a specific issue. For example, we issued press releases for small workplace violence or heat citations because we wanted to send a message to employers that OSHA was concerned about the issue and ready to cite employers who put workers at risk.
While McMurrey’s death has garnered major press attention despite the lack of a press release, it wasn’t until two months after OSHA issued the citations and mainly due to press inquiries.
Regarding the labor exploitation revealed by Politico, the root cause is that cannabis cultivation and sales remains illegal at a federal. That means that
All employers — even those licensed at the state level — lack access to E-Verify, a government service that helps businesses verify immigration status. They also cannot use visa programs like H-2A and H-2B, which facilitate legal immigration of farmworkers in other industries. Criminalization “is creating all the incentives for us to cheat,” said Nathan Howard, co-founder of licensed cannabis farm East Fork Cultivars in southern Oregon. Without access to the same resources as other employers or even other farmers, choosing to farm cannabis is “not just risky, it’s insane.”
The obvious solution is federal decriminalization.