Why an OSHA Program in Colorado Matters to Cannabis Production Facilities Nationwide

November 1, 2024

If your cannabis production facility is not located in Denver or Englewood, Colorado, why should you care about the Local Emphasis Program (LEP) recently announced by the federal Occupational Safety and Health Administration (OSHA) for those areas? The LEP issued by OSHA's Denver Regional Office should matter to facilities nationwide for at least the following three reasons.

1. The LEP's findings inform the industry's understanding of potential health and safety hazards. In particular, pay attention to hazard communication, flammable materials and particulate matter.

First, a little background. Under the LEP, OSHA's area office for part of Colorado will conduct programmed facility inspections, which are comprehensive reviews of facilities subject to the LEP. (See LEP § I.) OSHA conducts unprogrammed inspections for various reasons, including visits after serious injuries or illnesses, and where workers have lodged complaints. If you are not subject to an emphasis program, you could still be subject to an unprogrammed inspection. While these inspections are relatively rare for employers generally, inspection risk increases if there are complaints or serious injuries or illnesses.

In the LEP, OSHA provided details about previous unprogrammed inspections in the area. Most unprogrammed inspections resulted in multiple citations. Certain standards were cited at more than half of the inspections. For 66% of the inspections, the facility received a citation under the Hazard Communication ("Haz Com") standard. Other commonly cited areas involved standards for respiratory protection (41% of all inspections) and personal protective equipment ("PPE") (20% of all inspections). (See LEP § VII.) While a focus on compliance with rules from state cannabis regulatory agencies is, of course, important, it is also important to pay attention to core elements of environmental and health and safety compliance ("EHS"), such as the Haz Com and PPE standards. See # 2 below for more on compliance with multiple regulatory structures.

The LEP described five industry health and safety hazards. Four hazards called out the significance of flammable materials. OSHA also highlighted concerns with particulate matter in facilities, noting the 2022 Massachusetts worker fatality attributed to inhaling airborne marijuana particulate and identifying potential adverse health effects from exposure to microbes. (See LEP § VII.) Respirable dust and fire/life safety issues are frequently cited and typically difficult to defend.

• This review of OSHA inspections and known hazards in the industry highlights the importance of taking proactive steps to ensure compliance with OSHA requirements, with an emphasis on the Haz Com standard, flammable materials and particulate matter.

2. The LEP identifies a "lesson learned": following guidance from your state cannabis program does not necessarily equate to compliance with OSHA requirements.

OSHA reviewed the provision of health and safety training to cannabis employees in Colorado. For example, OSHA reported on a survey that found that only 15% of workers received continuous, structured safety and health training. Notably, OSHA called out the inadequacy of certain materials provided by the state marijuana regulatory agency. In particular, training materials on controlling flammable vapors and on electrical safety were insufficient. (See LEP § VII.)

• This review of state-provided materials emphasizes the importance of ensuring you are compliant with both state agency rules and OSHA rules. Utilizing materials provided by your state regulatory agency is not a guarantee that you will be fulfilling all relevant health and safety requirements enforced by OSHA.

3. The LEP is prompting proactive health and safety program evaluations that could be undertaken in other states.

As part of the LEP, OSHA conducts outreach activities to raise awareness and disseminate information. (See LEP § X.) News reports indicate that OSHA is offering free-of-charge consulting services for certain employers. Other free programs are offered in states nationwide.

While you may not be eligible for free evaluative programs, you could conduct a self-analysis. Options range from a comprehensive self-audit, with legal direction from an attorney and involvement of a qualified health and safety professional, to an internally managed effort to examine specific areas such as the Haz Com standard.

Caution: There are pros and cons to different types of audits. Relevant considerations include cost, comprehensiveness, and disclosure concerns. Employers should not assume that all findings would be protected from disclosure. For example, see OSHA's policy on self-audits and recognize that OSHA might demand the production of information.

• Conducting a self-audit and acting on the findings could help improve the facility's overall safety profile, reduce the potential for OSHA enforcement proceedings, and trim costs related to adverse events. Because completing a self-audit helps demonstrate the employer's commitment to a strong health and safety program, employees who are aware of such an initiative might be less likely to lodge complaints with OSHA; no complaints means there is less likelihood of an unprogrammed inspection.

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, including experience with regulatory enforcement of allergen issues in cannabis workplaces. Our cannabis team can guide you through compliance with occupational health and safety matters and responding to OSHA enforcement activity.