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.
Massive wildfires in Canada recently covered the northeast United States in a plume of smoke. On June 8, 2023, New York City’s Air Quality Index – the Environmental Protection Agency’s index for measuring and reporting air quality – reached a very hazardous level of 460 AQI. New York City’s level fell just shy of Portland, Oregon’s 465 AQI level during a horrendous 2020 wildfire season. As Oregon’s wildfire season approaches, firefighters are already fighting early blazes and conducting prescribed burns to take a preemptive strike at future wildfires. Employers can also prepare for Oregon’s fast-approaching wildfire season by developing strategies to address many employment and workplace safety laws that will come into play this season.
Managing Absences During Wildfire Season Due to Evacuations and Illness
Managing a workforce during wildfire season is challenging due to increased absences associated with emergency evacuation orders and illness from smoke exposure. Oregon employees covered by the Oregon Sick Time law and the Oregon Family Medical Leave Act have unique leave entitlements during wildfire season. Starting September 3, 2023 – if the Oregon Paid Family and Medical Leave Insurance Fund is solvent – employees may be entitled to leave benefits under Paid Leave Oregon.1
Currently, eligible employees are allowed to use protected sick time when a public official determines that the AQI is at a level where continued exposure would “jeopardize the health of the employee.” According to the EPA, an AQI ranging from 101 to 150 is unhealthy for sensitive groups and an AQI ranging from 151 to 200+ is unhealthy for the general public. Employers may want to anticipate an increased use of protected sick time when AQI reaches unhealthy levels. Eligible employees are also allowed to use protected sick time when their home or the employer’s place of business is subject to a level 2 (SET) or level 3 (GO) emergency evacuation order. While an employer’s first instinct may be to deny a request to use sick time for this purpose – because the employee is not sick – the regulations allow use of such time considering the emergency evacuation is a “public health emergency.” In addition, eligible employees or their family members who experience illness or serious health conditions due to smoke exposure may be entitled to use protected sick time, OFLA leave, or to seek Paid Leave Oregon benefits.
If Oregon’s wildfire season becomes so extreme that Governor Tina Kotek implements the Emergency Conflagration Act – last implemented during the 2020 wildfire season – then employees who serve as firefighters or first responders may request unpaid leave to respond to the emergency. Employers “may” grant such requests and if they do so then they must comply with applicable statutory prescriptions with respect to job protection and restoration or risk facing an unlawful employment practice claim. Employers may want to consider leave requests carefully, ensure that policies and forms are up-to-date, and ensure that information is available to covered employees who seek leave during wildfire season.
Predictive Scheduling Implications
Retail, hospitality, and food service employers with 500 or more employees nationwide that operate establishments in Oregon are subject to Oregon’s predictive scheduling law. Oregon’s predictive scheduling law requires – among other things – that employers provide written notice of work schedules to covered employees at least 14 calendar days in advance of a covered employee’s first scheduled shift. Subject to certain exceptions, employees impacted by schedule changes without 14 days’ advance notice are entitled to additional payments under the law.
During wildfire season, sudden schedule changes may occur due to changing emergency evacuation orders or property damage from wildfire. Additional payments may be owed to covered employees who work a different shift or different hours in response to another employee’s sudden absence to evacuate their home. Additional payments are not owed to covered employees when an employer’s operations cannot begin or continue due to a “natural disaster or similar cause” which includes wildfires. For example, if an employer’s place of business must evacuate or is destroyed by wildfire and operations cannot continue then additional payments are not owed for cancelled shifts. Employers may want to ensure that their predictive scheduling forms are up-to-date, that managers are trained on predictive scheduling obligations, and that covered employees are adequately compensated for short notice schedule changes when required by law.
Protecting Employees from Exposure to Wildfire Smoke
Exposure to wildfire smoke can cause health issues ranging from a runny nose to trouble breathing, asthma attacks, and even heart attacks. The Oregon Occupational Safety and Health Administration (OR-OSHA) requires all Oregon employers to protect their employees from exposure to wildfire smoke. Employers must implement safety measures when fine pollutant particles produced by wildfire smoke reach a diameter of 2.5 micrometers or less, i.e., an AQI of 101 or more. Generally, employers are required to implement the following safety measures:
In addition to the AQI 101-250 requirements:
501 and above
In addition to the AQI 101-250 requirements:
Employers do not have to implement these safety measures for employees working from home or employees working in an enclosed building, structure, or vehicle provided certain conditions are met. For example, the air inside an enclosed building must be filtered by an appropriate filtration system and all exterior openings must remain closed except as needed to briefly open doors to enter or exit the building. Certain work activities are also exempt from some of the above-listed safety measures such as activities involving only intermittent employee exposure to AQI at or above 101 in accordance with OR-OSHA rules. Employers may want to ensure an adequate inventory of NIOSH-approved filtering facepiece respirators before wildfire season goes full force. Employers may also want to ensure that their wildfire smoke exposure training is up-to- date and that they familiarize themselves with all the OR-OSHA wildfire smoke exposure rule requirements. Employers can monitor AQI levels through several OR-OSHA approved methods, including by visiting the Oregon DEQ or U.S. EPA AirNow websites.3
1 See OR SB 31.
2 According to OR-OSHA, NIOSH-approved filtering facepiece respirators do not include any “KN” designations, such as KN95s. Such “KN” respirators are not appropriate to reduce employee exposure to wildfire smoke. NIOSH-approved filtering facepiece respirators appropriate for wildfire smoke protection include: N95, N99, N100, R95, R99, R100, P95, P99, and P100.
3 For more information on how employers can navigate natural disasters, see Littler Mini Guide – Operating Through Emergencies and Natural Disasters.