California wildfire season is fast approaching. In preparation for it, the California Division of Occupational Safety and Health (“CalOSHA”) approved certain emergency regulations on July 30, 2019 requiring California employers to monitor air quality for particle pollution, and reduce workers exposure to potential harm from wildfire smoke.
The regulations apply to all employers with workplaces exposed to wildfire smoke above an Air Quality Index level (“AQI”) of Value 151 and are intended to protect workers from certain particle pollution, which is referred to as particulate matter (“PM”). AQI, is a calculation of the four major air pollutants regulated by the Clean Air Act, which includes particle pollution. There are two categories of PM – fine particles (2.5 micrometers or less in diameter, referred to as PM2.5) and course particles (2.5 to 10 micrometers in diameter, referred to as PM10). The emergency regulations are only directed at the PM2.5 level, which are produced from nearly every type of combustion, including wildfires.
Employers potentially impacted by the emergency regulations are quickly able to obtain the current and forecasted AQI Value for PM2.5 at www.AirNow.gov for each respective workplace by inputting the relevant zip code. Additionally, the California Air Resources Board website also provides this information for certain cities here. Employers may also sign up to receive free email alerts when air quality in their area may reach harmful exposure levels.
Workplaces that are not in enclosed buildings or vehicles with the appropriate mechanical ventilation or air filtration system are potentially impacted by these emergency regulations. Additionally, any occupation where an employee faces exposure to PM2.5 with an AQI Value of 151 (“Exposure Threshold”, our term for simplicity, not found in the regulations) or greater for more than one hour are also subject to the emergency regulations. Accordingly, employers of occupations such as construction, agriculture, landscaping, maintenance, commercial delivery drivers and other workplaces that expose the worker to the outside air for more than one hour will be most impacted.
Where the Exposure Threshold is exceeded and where employers should reasonably anticipate that employees may be exposed to wildfire smoke, certain steps must be taken to protect the employer’s workforce. Those steps include checking the AQI Values for PM2.5 before each shift, and periodically thereafter, as needed to protect the health of the employee, to determine if it is at or above the Exposure Threshold. An impacted employer must also make efforts to reduce harmful exposure to wildfire smoke if feasible – for example, an employer may need to relocate workers to an area, such as an enclosed building with filtered air, where the AQI is below the Exposure Threshold.
There are occupations and workplaces where relocation or reduction of exposure is not available. In that event the employer must provide sufficient respirators (i.e. N95 masks) to all affected employees for voluntary use, and provide training on the new regulations, the health effects of wildfire smoke, and the safe use and maintenance or respirators.
Communication is critical for affected employers. Under the regulations, impacted employers are required to set up a system that is capable of communicating, to all affected employees (in a language readily understood), the status of wildfire smoke hazards. This communication system must also be reciprocal, in that employees must be able to report, without fear of reprisal, whether there is worsening air quality and/or any adverse symptoms that they may be experiencing, such as chest pain or asthma.
One final requirement of the new regulations is that impacted employers are required to update their Injury and Illness Protection Program (“IIPP”). Under California law, all employers are required to have an effective written IIPP. The updates required by these new regulations include the addition of a provision for training and instruction on:
- The health effects of wildfire smoke;
- The right to obtain medical treatment without fear of reprisal;
- How employees can obtain the current AQI for PM2.5;
- The requirements of the regulation;
- The employer’s communication system regarding wildfire smoke;
- The employer’s methods for protecting employees from wildfire smoke;
- The importance, limitations and benefits of using an approved respirator when exposed to wildfire smoke; and
- The proper use and maintenance of respirators.
Potentially impacted employers need to immediately review and supplement their IIPP documents to reflect these updated regulations. Additionally, employers should promptly assess their communication protocols and procedures relating to the new regulations, and target to train their staff regarding these new rules before fire season is fully upon us. Finally, potentially impacted employers should plan for fire season by reviewing and updating, if necessary, their respiratory protection policies and procedures and ensuring a sufficient supply of filtering respirators are available and accessible to employees.
The attorneys at Carmel & Naccasha have extensive experience advising employers on matters involving CalOSHA compliance, drafting policies and procedures, advising, auditing current programs and defending against CalOSHA claims. Please contact us if you have any questions or need assistance in ensuring your business is protected.