Workplace Violations Found in Marijuana Sector

The Occupational Safety & Health Reporter™ provides complete news coverage and documentation of federal and state occupational safety and health programs, standards, legislation, regulations,...

By Stephen Lee

Aug. 24 — As the marijuana industry slowly goes mainstream, labor activists are finding evidence of dangerous work practices that have remained in the shadows for years.

Because growers, processors and sellers in states where marijuana is now legal have operated outside the law for so long, they have learned to ignore federal and state regulations, said Sharon Ness, a lobbyist for the United Food and Commercial Workers Local 367 of Tacoma, Wash.

But now these employers could find themselves in violation of a wide range of worker safety rules governing such topics as farm equipment, field sanitation, training, ventilation, occupational noise and personal protective equipment.

‘Illegal for Decades.'

"Many of the cultivators in this industry have been doing things illegally for decades,” Frank Conrad, lab director at a marijuana testing facility called Colorado Green Lab, told Bloomberg BNA. "There needs to be a framework for bringing them up to speed on what's legal and what's not. They may not have familiarity with operating [legally] in agriculture, the way a farmer who's been growing corn for 40 years has.”

Ness recently visited a large growing operation that had never trained its workers on how to use a backhoe, instead relying on an ad hoc information exchange between staff.

"They said, ‘People here know how to do it,' but these people are now [legal] workers,” Ness said. "You're a legitimate business now. And as a legitimate business in Washington, there are certain regulations you have to meet.”

Alaska, Colorado, Oregon and Washington, as well as Washington, D.C., have legalized recreational marijuana. Ohio could join those states if voters approve a ballot initiative in November. In addition, 19 other states have legalized marijuanafor medical use.

Catch-22 for Growers.

The safety and health concerns begin at the start of the marijuana supply chain, with growers.

Even growers who want to follow the law find themselves trapped in a Catch-22: although their states let them grow and sell the crop, many of the pesticides they want to use must first be approved for marijuana by the Environmental Protection Agency. But because marijuana remains an illegal narcotic at the federal level, the EPA hasn't taken action, leaving growers in murky legal terrain.

For example, many cannabis farmers have long used myclobutanil, a pesticide commonly used on grapes, Conrad said. The problem is that the EPA must approve the use of myclobutanil for specific crops, which it hasn't.

Other restrictions limit the use of pesticides such as abamectin and the organophosphate family of chemicals, all of which are widely used in marijuana cultivation, Conrad said.

"It's just kind of, ‘Read the label,' ” Cassidy West, associate director of compliance at Vicente Sederberg LLC, a Denver-based law firm that specializes in marijuana law, told Bloomberg BNA. "If the label is broad enough, they figure you can use it on marijuana. But that doesn't mean it's safe.”

"They may not have familiarity with operating [legally] in agriculture, the way a farmer who's been growing corn for 40 years has.”Frank Conrad, Colorado Green Lab

Some relief may be on the way, however. In May, the EPA said it would offer a fast-track process for pesticides to be approved for marijuana in states that have legalized it. A state could be granted approval by showing that a given pesticide doesn't cause "unreasonable adverse effects” to the environment, according to an EPA  letter describing the program.

Jurisdictional Questions.

But that action is being challenged by a public health group called Beyond Pesticides, which argued in a July  letter that because cannabis is still a Schedule 1 drug the EPA can't review any requests for pesticide exemptions.

Beyond Pesticides is also disputing the Colorado Department of Agriculture's 20-page  list of pesticides that it says can be used on marijuana plants, arguing that the state can't usurp the EPA's regulations.

Broadly, states and cities are allowed to regulate pesticides themselves, but they must meet the minimum standards established under the Federal Insecticide, Fungicide and Rodenticide Act and can't unilaterally approve pesticides that don't have the EPA's blessing.

Hazards Throughout the Supply Chain.

In addition to pesticides, marijuana growers and harvesters are also exposed to the usual range of agricultural hazards posed by farm vehicles, sharp hand tools, organic dusts and heat, Brian Caldwell, chairman of the Northwest Producers, Processors and Retailers Association in Tacoma, Wash., told Bloomberg BNA.

During the processing stage, workplace hazards include blades on trimming machines, sharp garden shears and exposure to powdery mildew, Caldwell said.

Marijuana processors can also be exposed to high levels of carbon dioxide and ultraviolet light, and some trimmers have experienced dermatitis and respiratory problems, added the UFCW's Ness.

Explosions on the Rise.

Flash fires and explosions also are sharply increasing among marijuana processors who use butane to extract cannabinoids, a chemical compound found in the cannabis flowers.

In 2014, Colorado saw 32 extraction laboratory explosions and 30 injuries, according to a  report by the White House's Rocky Mountain High-Intensity Drug Trafficking Areas program. By contrast, in 2013 there were only 12 explosions and 18injuries.

Many of the explosions are caused by amateurs working out of their homes or apartments, Caldwell said.

‘Oh, My God. What Did I Do?'

Indeed, a previous volume of the  report lists a series of case studies suggesting that many extractors are, at best, negligent and, at worst, dangerously incompetent. One man in Fort Collins, Colo., caused an explosion that blew out windows and rocked his entire apartment building while trying to follow a process he had learned on YouTube. Another man in Aurora, Colo., suffered burns to 27 percent of his body when his roommate, unaware that butane was being used in the house, came into the room and generated static electricity, triggering an explosion.

"My hands literally melted off in one instant,” the report quotes Wayne Winkler, a lab extraction burn victim, as saying after he suffered burns to over 12 percent of his body. "And I’m burning alive. I had no skin on my fingers to even dial my phone. I just said, ‘Oh, my God. What did I do? What did I do?' ”

Finally, marijuana sellers are exposed to unusually high rates of break-ins and robberies, largely because of marijuana's status as a Schedule 1 drug federally, Caldwell said. Many banks refuse to do business with dispensaries that technically violate federal law, leaving the stores often flush with cash and a prime target for robberies.

Regulatory Response in Question.

The discoveries of workplace violations point to an awkward tension for state governments that want to enforce the rules without slowing the industry's growth, as well as for marijuana employers who want to keep their workers safe but prefer a go-slow approach to regulation.

A few attempts at regulation have already been made. To curb the rash of extraction explosions, for example, the state of Colorado has required any person who wants to extract cannabinoids with butane to be licensed.

But the threat of too much regulation, especially on an industry that is already well established, makes some marijuana operators anxious. Longtime growers and processors won't be able to rapidly comply with the mass of federal rules that govern employers, many marijuana advocates say.

"My presumption is that regulation specific to this industry will always fall on the side of being overly cautious or overregulated, not underregulated.”Paul Armentano, National Organization for the Reform of Marijuana Laws

"We have 70 years of regulatory framework to catch up on,” said Conrad, referring to the 1947 passage of the Federal Insecticide, Fungicide and Rodenticide Act. "It takes time to get there.”

Parallels to Alcohol Regulation.

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, compared the future of marijuana regulation to alcohol regulation, which he said is still changing to this day.

"We're talking about a nascent industry,” Armentano told Bloomberg BNA. "It's important, out of the gate, to make it clear to both the public and the politicians that this is an industry that takes seriously the idea of having proper regulations inplace. But reality dictates what those specific regulations and best practices are, and they're going to constantly be evolving over time.”

Armentano called for highly flexible regulations, ideally written by each state, similar to the way alcohol is regulated.

"I think that makes sense when we're talking about, not only a nascent industry like cannabis, but a product and activity that has been largely politicized for decades,” Armentano said. "People's visceral response to this activity is oftentimes based on regional and cultural mores. I would not expect that the way a state like Georgia might regulate the practice of the production of cannabis would look anything like the way Washington state or California might regulate those same practices.”

Still a Niche Industry.

Armentano further noted that the marijuana industry is still so small that specific safety regulations likely aren't warranted yet.

But he also said that, ultimately, he was pessimistic that regulators will apply a light touch.

"My presumption is that regulation specific to this industry will always fall on the side of being overly cautious or overregulated, not underregulated.”

Still others concede that regulation could be a stepping stone to legitimacy.

"I call [marijuana] ‘problematic adult commerce,' ” Allen St. Pierre, NORML's executive director, told Bloomberg BNA. "We're a vice. We're up there with alcohol and guns and strip clubs and casinos. There's a divide between professionalism and the desire to be unregulated.”

Black Market Operators Remaining in Shadows.

One threat in trying to regulate a formerly illegal industry that has been running for so long and is populated by operators with well-established ways of doing things is that doing so may only encourage black market operators to remain in the shadows, said Sean O'Connor, a law professor and faculty director of the University of Washington's Cannabis Law and Policy Project.

Already, many large-scale black market growers in Washington are "not in any hurry to try to come into the regulated system,” O'Connor told Bloomberg BNA. "To be frank, a lot of the black market folks are saying, ‘I have good profit margins right now. I only stand to lose those profit margins as I come into the light, pay taxes and even just [incur] the overhead cost of having legitimate operations.' ”

O'Connor's hope is that the underground operators may eventually be persuaded to get licensed and go legal.

"There's still going to be some home-grown operations, but with the ultimate lure of a market that's clean, well-lit and regulated, will that be powerful enough to bring the vast majority of the market?” O'Connor said. "We think it might be.”

Lawyer Favors Light Hand.

West, the marijuana attorney, said she favors a go-slow regulatory approach to give existing employers a chance to comply.

In Colorado, organizations like the anti-marijuana group Smart Colorado "want to impose and lobby for really ridiculous, burdensome standards that cost industry a lot of money,” West said, such as consumer labeling requirements.

The operations will be "subject to the same consultation marketing and inspection scheduling protocols as any other agricultural or processing operations, and I am certain that we will indeed inspect them during the normal course of business.”Michael Wood, Oregon Occupational Safety and Health Division

"I don't think putting another label on—when there's already 15 warning labels—is really going to make a difference,” West said. "But it'll cost industry. While I would like them to rule with a lighter hand, it's still such a politically sensitive subject, and that's why a lot of the burdensome regulations that don't have any positive impact are being implemented right now.”

Regulatory Resistance.

West also said she frequently encounters resistance when she tries to convince employers to comply with state and federal laws.

One reason for noncompliance is that many of the people who work in the marijuana industry are ex-criminals, according to West.

"They've been living on this risk-based philosophy most of their lives,” she said. "I go in and say, ‘Hey, you guys need to put a camera here,' and I always get a lot of, ‘Why do we have to do this? What's the point?' ”

But O'Connor suggested that regulators may have no choice but to take a heavy-handed approach when it comes to protecting workers.

"On the worker health side, there may not be any way around it other than to regulate for employee and worker safety,” O'Connor said. "At some point, that has to overcome any deference anyone wants for long-standing practices. If people are getting hurt and maimed, there’s no business that should get away with that. At a certain point, someone has to stand up for the workers.”

Agencies Describe Enforcement Plans.

The Occupational Safety and Health Administration told Bloomberg BNA that it treats marijuana enforcement the same way it treats agricultural enforcement.

In Denver, OSHA is collaborating with the state health department, Colorado State University and others on advisory efforts, an OSHA spokeswoman said.

"In addition, OSHA will respond to fatalities, severe injuries, complaints and referrals from larger farms not covered by the appropriations rider,” she said, referring to a congressional exemption that shields from OSHA enforcement any farming operations that employ 10 or fewer workers and don't have a temporary labor camp.

No Specific Plans in Oregon.

Michael Wood, administrator of Oregon's Occupational Safety and Health Division, told Bloomberg BNA that the agency "does not have any plans to direct resources specifically to marijuana growing operations.”

But he also said the operations would be "subject to the same consultation marketing and inspection scheduling protocols as any other agricultural or processing operations, and I am certain that we will indeed inspect them during the normal course of business (which is distinct from past operations, where they were inherently illegal operations that operated outside the normal constraints of running a business).”

Wood further noted that Oregon OSHA "maintains a greater enforcement and educational presence in agriculture than federal OSHA and most other state safety and health programs.”

Elaine Fischer, a spokeswoman for the Washington State Department of Labor and Industries, told Bloomberg BNA that employers who are in business to grow marijuana "are subject to the same enforcement as any other employer.”

"My discussion with our folks was, if these businesses were going to be legitimate, then we needed to make sure they were safe as well.” Sharon Ness, UFCW Local 367

Inspections would be initiated based on complaints, referrals or injuries and fatalities, Fischer said. The state may also perform scheduled inspections.

Activists Look to Training.

To fill the regulatory and enforcement gap, some labor activists have turned to training to improve safety in the marijuana industry.

UFCW Local 367 is working on a best practices manual for the cannabis industry and has designed a series of training classes covering all aspects of the business, "from seed to sale,” Nathe Lawver, the local's communications director, told Bloomberg BNA. Most of the attendees have been medical dispensary operators, but some growers have also attended, Lawver said.

The classes, administered jointly with the Washington State Department of Labor and Industries, are broken into six modules: accident prevention plans and basic first aid, safety committees and emergency response plans, hazardous chemicals, mechanical hazards and wo personal protective equipment modules.

"My discussion with our folks was, if these businesses were going to be legitimate, then we needed to make sure they were safe as well,” said UFCW's Ness.

Similarly, the Colorado Department of Agriculture has begun offering worker protection workshops for owners and grow managers on how to comply with the EPA's agriculture worker protection standard for pesticides.

Unionization the Answer?

To many, unionization points a plausible way forward for workers whose safety is jeopardized on the job, as labor contracts could standardize working conditions across the patchwork of state regulatory schemes.

The UFCW has already begun organizing marijuana workers nationally through a group called Cannabis Workers Rising and is offering the promise of health insurance, pensions and other union benefits to workers in the medical marijuanaretail sector.

Meanwhile, in Los Angeles, an upstart group called United Cannabis Workers is making its own efforts to organize marijuana workers nationally.

"They want a safe place to work, they want no discrimination, they want fair wages and they want benefits,” Scot Bennet, UCW's president, said in a YouTube  interview posted on the union's website. "And that's what we're here to try and help them all get.”

California Is Key.

The fate of the legalization movement rests heavily on a ballot initiative in California set for 2016, St. Pierre told Bloomberg BNA.

"Strategically, this nation-state called California must flip, or reformers can plot away for another 10 years, flipping over the Rhode Islands and the Montanas,” he said. "If California goes, I suggest national reforms will be kicked in.”