This post was originally written by Daniel Shortt for Canna Law Blog.
Marijuana industry workers face a unique legal landscape due to the interplay of federal and state law. Several states allow for medical use of marijuana and Alaska, Colorado, Oregon, Washington and Washington D.C. have legalized cannabis for recreational use. Federal law has not followed suit and it still prohibits marijuana under the Controlled Substances Act. This dichotomy of laws creates ambiguity when it comes to how federal law applies to marijuana businesses in a whole host of legal areas, including labor and employment law.
Despite federal illegality of cannabis, some federal agencies have gotten involved with it nonetheless. For instance, the Internal Revenue Service (IRS) collects federal taxes from marijuana businesses and even issued a guidance memo on how marijuana businesses should be paying their taxes. And though the he Food and Drug Administration (FDA) has mostly stayed out of the marijuana business, it did recently issue warning letters to companies that made unsubstantiated medical claims about their cannabis products.
The Department of Labor (DOL) has so far not involved itself in the marijuana industry. The DOL administers and enforces more than 180 federal laws which cover around 125 million workers. These federal laws regulate wages, hours, health and safety, worker’s compensation, whistleblower protection, and unions, among other things. Many states also regulate labor, but state law often merely supplements federal law. Because marijuana is illegal under federal law and because the DOL has not offered clarification regarding the applicability of federal law to U.S. workers, marijuana employees are working without clear federal protections given to workers in other industries.
The lack of federal worker protections could negatively impact marijuana industry workers and increase risks for cannabis consumers. If a worker at a marijuana production facility notices the use of a banned pesticide, she may decline to report her finding for fear of being terminated in retaliation. Normally, she would be protected under federal whistleblower statutes, but because marijuana is illegal, federal law may not apply. Some states have their own whistle blower statutes, but some don’t and the strength of those that do are all over the map.
Labor advocates are speaking out to raise awareness about cannabis industry labor issues. In November, the Washington State Liquor and Cannabis Board held a series of public hearings to address concerns regarding the Washington State cannabis industry. Much of the testimony at the LCB’s Seattle meeting was regarding the lack of labor regulations.
The Washington State Department of Agriculture recently released a bulletin titled the Worker Protection Standards (WPS): Requirements for Marijuana Growers setting forth standards promulgated by the Environmental Protection Agency (EPA). Washington state has incorporated these standards in WSDA rules (WAC 16-233) as well as Labor and Industry rules (WAC 296-307). These standards address issues related to pesticides and, among other things, require safety training for agriculture workers and require they wear protective equipment. The WPS apply to agricultural workers generally and are not specific to marijuana cultivation.
Washington’s bulletin is certainly a step in the right direction when it comes to marijuana labor laws. However, a litany of labor related issues remains for marijuana workers in Washington and across the country. As the cannabis industry expands we expect these issues to be addressed either by federal agencies enforcing federal labor laws against marijuana businesses or by state agencies creating rules and regulations to protect marijuana workers. For the time being, however, marijuana workers will continue with reduced worker protections.