Federal courts and regulatory bodies are showing a keen interest in upholding federal employment laws within the marijuana industry; despite the federal classification of cannabis as a Schedule 1 substance under the Controlled Substance Act (CSA). In such instances, the focus shifts from addressing the legality of marijuana to the enforcement of common law practices. (You can review these common law best practices in Delta Compliance’s robust catalog here.)
Even with established policies and procedures, incidents may arise, triggering the need for documentation and adherence to common law reporting requirements. The Occupational Safety and Health Administration (OSHA) Forms 300 and 301 mandate certain employers create and maintain records of work-related injuries and illnesses. A condition is deemed work-related if an event or exposure in the work environment caused or contributed to the condition or significantly exacerbated a preexisting one. While certain low-risk industries are exempt, most employers with over 10 employees are required to maintain records of serious work-related injuries and illnesses. Per regulation, incident records are to be posted annually between February and April for employee review; while a history of records shall be kept at the worksite for a minimum of five years.
Additionally, OSHA has promulgated new regulations on reporting requirements to be effective January 1, 2024, which state:
Establishments with 100 or more employees in certain high-hazard industries must electronically submit information from their Form 300-Log of Work-Related Injuries and Illnesses, and Form 301-Injury and Illness Incident Report to OSHA once a year. These submissions are in addition to the submission of Form 300A-Summary of Work-Related Injuries and Illnesses.
To improve data quality, establishments are required to include their legal company name when making electronic submissions to OSHA from their injury and illness records.
With recent recommendations to reschedule cannabis, it is projected that increased attention will be brought to cannabis industry practices, bringing additional oversight, enforcement, and regulations. Significant safety injuries and incidents in the cannabis industry have led to heightened awareness of the opportunities for increased safety awareness and practices within the industry. There is an indication that the federal government plans to further regulate workplace safety for cannabis companies by treating them as legitimate entities under the Occupational Safety and Health (OSH) Act, despite the federal illegality of marijuana.