OSHA intervention in the cannabis industry: Q&A with Jolene Donahue

jolene donahue

By John Schroyer

While the marijuana industry is rife with uncertainty, there’s one thing you can count on: Federal and state regulators will take a bigger interest in cannabis businesses as the trade grows and becomes more mainstream.

One such agency that will likely be paying more attention to marijuana businesses is the Occupational Safety and Health Administration, or OSHA. The agency works to ensure companies are creating safe working conditions for their employees. It operates at both a federal and state level, depending on how states choose to enforce worker safety laws.

Although OSHA violations and fines aren’t exactly commonplace throughout the cannabis space, many observers expect the agency to start ramping up inspections – especially in places like Colorado, where issues such as pesticides in cultivation operations have become a hot-button topic. That’s something OSHA could eventually investigate if pesticide use winds up leading to, say, cancer in workers who apply the chemicals in cannabis grows.

That’s where Jolene Donahue comes in. As the head of a private Colorado-based firm called The OSHA Connection, Donahue specializes in helping businesses prevent OSHA violations and deal with the agency if there’s an infraction.

Marijuana Business Daily spoke with her for insights about what types of OSHA violations are most common in the cannabis industry and how to avoid running afoul of workplace safety regulations.

Why should marijuana businesses be concerned about OSHA?

All employers are required to comply with OSHA regulations, including those in the cannabis industry. Adhering to OSHA is still the law, even if the sale of marijuana is not yet federally sanctioned.

This misconception has blindsided many with unnecessary fines. We also find that OSHA is holding the owners themselves responsible more and more often for employee concerns and complaints.

How many specific examples are you aware of in which either federal or state OSHA agents inspected a cannabis-related business and then fined the company?

I am aware of a steadily increasing number of inspections dating back to 2011.

In Colorado alone, there were close to 10 inspections in the past year, and we expect that number to rise. The state of Colorado has created a Marijuana Regulatory Health and Safety task force and I am serving as the Safety and Security Subcommittee chair.

We find very few in the industry are taking an active role in implementing OSHA-required safety measures because they aren’t aware they need to. There are a few strategic businesses hiring knowledgeable consultants before receiving contact from OSHA, however, many owners will be caught off guard and can expect to be fined accordingly.

We have found that even those that feel they have very safe environments are missing key components found within OSHA standards.

What are the most common violations, and what are the typical penalties for those?

Electrical infractions are often identified. One violation that appears prevalent is connecting equipment and lights into temporary wiring, such as extension cords. Fines per inspection have ranged between $3,000 to $11,000.

Another frequent violation is allowing employees to use respirators without medical evaluation or a proper fit test, with an associated fine of $2,800 per inspection, which can be up to $7,000 per employee.

So it sounds like the most common OSHA violations have to do with cultivation operations, is that right?

Yes, grow operations and edibles manufacturing naturally have increased exposure to fines and violations because the work itself has a higher exposure to injury and illness.

They are often similar to those found in manufacturing plants, industrial kitchens, nurseries and pharmaceutical companies. Retail location concerns are often similar to a combination of a bank and late-night convenience stores.

What can cannabis companies do to avoid OSHA fines?

Preparation is always best. Employers should train and make changes now to create sustainable programs as opposed to waiting for a call, fine or citation from OSHA.

Once contact occurs, employers scramble to abate, in addition to paying hefty fines. And then the door is open – the same establishment can find themselves inspected again and assessed new or repeat violations not only at that location, but each sister building as well. Each repeat violation can run up to $70,000.

If an employer takes the time to put required components in place one step at a time, then they’ll be up and running smoothly and if OSHA does come in, it won’t be a big deal.

Do you expect more involvement from OSHA and other federal regulators as time goes on when it comes to the marijuana industry?

Absolutely. At some point, when marijuana does become federally sanctioned, they will be entered into the same lottery as other employers, and there will be a natural increase in inspections.

What we’re seeing now is an increase in disgruntled employees. As employees are being let go for legitimate concerns, they sometimes try and obtain additional compensation by filing a complaint. Once received, OSHA has to investigate.

Even though it’s against the law, we have not seen repercussions filed against fraudulent complaints, and that’s unfortunate. It costs time and money to respond even if no infraction is found.

This interview has been edited for length and clarity.

John Schroyer can be reached at [email protected]

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