Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In response to the dangerous levels of air quality last fall after the wildfires in Northern and Southern California, the California Division of Occupational Safety and Health (Cal/OSHA) has issued a proposed regulation addressing hazardous wildfire smoke exposure.
Late last year the Occupational Safety and Health Standards Board received a joint submission from the California Labor Federation, Worksafe, and the California Rural Legal Assistance Foundation, seeking emergency regulatory protection for outdoor workers from hazards associated with wildfire smoke. These organizations sought adoption of regulatory standards through Cal/OSHA’s emergency rulemaking process, to protect outdoor workers from conditions of “Unhealthy” air quality, which was defined as an Air Quality Index level higher than 150.
Under previous regulations concerning air quality, Cal/OSHA could cite employers under several related regulations including injury and illness prevention, control of harmful exposure to employees, respiratory protection or airborne contaminants.
Unlike the emergency regulation for electronic recordkeeping that went into effect last October, Cal/OSHA has scheduled a meeting to discuss the proposed regulation on May 8, 2019. Cal/OSHA will accept comments on that day and will likely provide an extended period for individuals or companies to provide comments before it submits the regulation to the Office of Administrative Law. After submission to the Office of Administrative Law, there will be an additional five-day period to comment before the agency reviews and/or adopts the proposed regulation. We anticipate the proposed regulation will be enacted during the summer or before the wildfire season.
Proposed Emergency Regulation
The proposed regulation would be codified as Title 8 Cal. Code of Regulations Section 5141.1 and titled: Protection from Wildfire Smoke. It would apply to workplaces (including indoor and outdoor locations), where the Air Quality Index (AQI) is classified as “Unhealthy.” This designation means there is a PM2.51 greater than 150. The regulation would be in effect only when there is a wildfire smoke advisory issued by either a local, regional, state or federal government agency or where there is a realistic possibility that employees may be exposed to wildfire smoke.
The regulation provides for an exception to these workplaces:
- Enclosed buildings or structures where the air is filtered by a mechanical ventilation system and employee exposure to outdoor or unfiltered air is effectively limited;
- Enclosed vehicles where the air is filtered by a cabin air filter and employee exposure to outdoor or unfiltered air is effectively limited;
- The employer demonstrates that the concentration of PM2.5 is less than an AQI of 150;
- Firefighters engaged in wildland firefighting; and
- Emergency response personnel performing lifesaving emergency rescue and evacuation.
What is Required Under the Proposed Regulation?
- Identification of Exposure
As proposed, the regulation would require an employer to check AQI forecasts and current AQI whenever there is a reasonable expectancy that an employee may be exposed to “Unhealthy” air quality. The employer must check AQI wherever employees are located, before each shift, and periodically thereafter as needed.
The regulation advises employers to determine the “Unhealthy” status from accessing information provided by the U.S. Environmental Protection Agency AirNow website, California Air Resources Board, Air Pollution Control Districts and/or Air Quality Management Districts. The draft regulation also notes that employers can access information regarding whether there is a realistic possibility of smoke exposure by consulting the Wildland Fire Air Quality Response Program of the U.S. Forest Service.
- Hazard Communication Program
Under the proposal, a covered employer must establish and implement a system for communicating with employees, which must include notice to employees of: (1) current PM2.5 levels; (2) changes in conditions that may worsen air quality, such as wind patterns and temperature; and (3) protective measures that will be available to reduce smoke exposure, as provided by the employer. The employer must also develop a system for encouraging employees to notify the employer of (1) worsening air quality; (2) changes in conditions that lead to worsening air quality; and (3) adverse health conditions likely resulting from exposure, such as asthma attacks, difficulty breathing and chest pains.
- Training of Employees
Similar to other Cal/OSHA regulations, the proposed regulation has a training requirement. The proposal would obligate employers to provide training on:
- The health effects of wildfire smoke;
- The employer’s communication system;
- The right to obtain medical treatment if injury or illness occurs without fear of reprisal;
- How employees can check AQI;
- The requirements of the regulation;
- The employer’s methods to protect employees from wildfire smoke;
- The importance, limitations and benefits of using a respirator when exposed to wildfire smoke;
- How to properly put on, use and maintain the respirators provided by the employer; and
- What actions to take if an emergency evacuation of the area becomes necessary.
- Hazard Control Systems and Respirators
The proposed regulation would also require employers to implement engineering and administrative controls,2 and provide personal protective equipment, to remove or significantly reduce employee exposure to wildfire smoke. Cal/OSHA added an exception: for employees who are exposed for less than one hour during a shift, there is no requirement for control systems. If exposure to AQI is classified as “Very Unhealthy” or “Hazardous,” employers must provide respirators.
Littler plans to attend Cal/OSHA’s May 8, 2019 advisory meeting to comment on potentially challenging aspects of implementation and enforcement of the proposed regulation, as it is currently written. Subject to any of the specified exceptions, and if the proposal is adopted, Cal/OSHA will likely require all covered employers to provide training on the new requirements shortly after enactment – and definitely before the wildfire season. California employers likely to be affected by this proposed regulation should stay tuned for developments.
1 PM2.5 refers to particulate matter suspended in the air with an aerodynamic diameter of less than 2.5 micrometers.
2 Engineering controls may be something like ventilation machines or air filtration machines. Administrative controls are policies and procedures or practices that allow employees to change environments or avoid wildfire smoke.