• CalChamber: Employer Requirements Under California’s Emergency Wildfire Smoke Regulation

    If you have outdoor workers — or indoor workers exposed to outside air or who spend an hour outside — this affects you.
    On July 29, 2019, the California Occupational Safety and Health Standards Board’s emergency regulation to protect outdoor workers from the harmful effects of wildfire smoke became effective.
    The California Division of Occupational Safety and Health (Cal/OSHA) has been developing these standards for several months. The process began in response to a petition Cal/OSHA received on December 13, 2018, filed jointly by the California Labor Federation, Worksafe and the California Rural Legal Assistance Foundation. Prompted by the devastating wildfires in recent years, the petition asked for emergency regulatory protection for outdoor workers from the harmful effects of wildfire smoke.
    Now that those regulations are in effect, there’s a lot for employers to know.
    “Broadly speaking … let’s say that you hear about a fire, you smell smoke, you need to be monitoring the AQI in your area, which you can do via government websites or an email alert, just checking how much smoke is in the air,” said CalChamber Policy Advocate Robert Moutrie in a recent podcast on the issue. “And then if it reaches certain levels, you’re gonna need to take certain steps with your employees, passing out some protection, things like that.”
    Read on for more details about employer requirements under this new emergency regulation, which is effective through January 28, 2020, with two possible 90-day extensions. A permanent rule is anticipated in 2020.
    Air Quality Index
    Under the new regulation, employers must take steps to protect workers who could be exposed to wildfire smoke. Employers will have to monitor the Air Quality Index (AQI) at their worksites for fine particulate matter (PM 2.5). If the AQI for PM 2.5 is greater than 150 and the employer “reasonably anticipates” that employees will be exposed to wildfire smoke, then employers must reduce exposure to the smoke.
    Depending on the worksite and conditions, employers may reduce exposure to workers by relocating them to enclosed buildings with filtered air (called the engineering control method) or to another outdoor location where the AQI for PM 2.5 is 150 or lower (called the administrative control method). If it is not feasible to reduce smoke exposure using engineering or administrative control methods, then employers must give employees the option to use air respirators, such as N95s.
    If the AQI exceeds 500, then respirator use is mandatory, and employers must also comply with the burdensome respiratory protection requirements contained in section 5144, including fit testing and medical evaluations. The regulation also specifies that if facial hair interferes with the seal, a respirator provides much less protection, so workers with facial hair may wear loose-fitting, powered air purifying respirators since facial hair doesn’t affect their seals.
    The regulation also explains how to check current and forecasted AQI, such as by checking the U.S. EPA AirNow website, U.S. Forest Service Wildland Air Quality Response Program website or the California Air Resources Board website, to name a few. Employers may also measure PM 2.5 levels themselves to determine AQI.
    Employers must establish a system to communicate to employees about AQI levels, including relaying information about available protective measures, and encourage employees to inform them of both worsening air quality and any adverse symptoms resulting from smoke exposure. Employers must also provide training on the new regulation, including information about the effects of wildfire smoke, obtaining medical treatment, how to obtain AQI information, methods to protect employees from wildfire smoke, and how to safely use respirators. Read the full text of the regulation for monitoring and training requirements.
    Affected Workplaces
    Certain workplaces are exempt, such as enclosed buildings or vehicles that have air filter systems, firefighters engaged in firefighting, or employees with only short-term exposure to the smoke (less than one hour). As such, the regulation primarily affects outdoor occupations and industries, including agriculture, construction, maintenance and landscaping. However, beyond these obvious industries, the regulation will likely have a very broad reach.
    “Rule of thumb, if you have an employee who’s outdoors for more than an hour [in their shift], then that employee’s going to fall under this [requirement],” Moutrie said.
    That means a cumulative hour or more outside over the course of a shift, not a solid hour, will trigger compliance. The regulation could also include employers whose employees are intermittently exposed to outside air. For example, delivery jobs or certain warehouse jobs where employees might move in and out of doors could fall under the emergency regulation.
    Even an employer with no outdoor employees should be cautious, as the regulation could also apply to high traffic indoor worksites such as restaurants or banks where doors are consistently opened and allow in outside air. Employers should consult with legal counsel to determine if they fall into an exemption.
    Working Toward Permanence
    As Cal/OSHA works on the permanent rule, a CalChamber-led coalition seeks to include changes that would provide employers with greater certainty — and emphasizes that Cal/OSHA should not use the emergency rule as a means to adopt broader standards than the original intent.
    The emergency rule also includes ambiguous or confusing language that needs clarification, including:
    When an indoor environment’s ventilation or other features are enough to exempt the area from the regulation, especially in the context of high traffic sites where doors are opened often;
    How employers should fulfill their obligation to train employees;
    Procedures for testing powered air respirators’ fit and evaluating their effectiveness; and
    Whether facial hair should be shaved or allowed with use of a respirator.
    The process of adopting the permanent regulation has begun; an advisory committee meeting is set for August 27 in Oakland to allow both stakeholders and the public to provide information and scientific data on employee exposure to wildfire smoke, control measures, feasibility or costs.
    What Should Employers Do
    Employers must quickly prepare to comply with these regulations. Determine whether the smoke protection requirements apply to your business and, if so:
    Familiarize yourself with how to monitor AQI information;
    Develop the appropriate training and information for your employees;
    Set up an internal policy and train supervisors on how to monitor the AQI, and what to do if the PM 2.5 levels trigger compliance requirements; and
    Potentially have respirators on hand. (Employers with outdoor employees should stock up on respirators, such as the N95s, to prepare for multiple shifts of employees working in poor air quality to facilitate timely compliance with the regulations and minimize potential disruptions in work.)
    Employers should follow these steps and consult legal counsel to avoid disrupting their business any more than necessary during wildfires.

    This article courtesy of CalChamber HR California: https://hrcalifornia.calchamber.com/cases-news/hrce-articles/california-emergency-wildfire-smoke-regulation