Climbing out of the ash from the California fires: Cal/OSHA compliance



October 20, 2017

CAL/OSHA Alert

Author(s): Rachel L. Conn, Jeffrey M. Tanenbaum

In the aftermath of California’s devastating fires, this alert discusses the steps employers should take to protect employees during the monumental cleanup. 

As cleanup begins from the tragic fires that have devastated significant parts of the state, businesses have a number of Cal/OSHA compliance obligations to address. There are generally no exceptions under Cal/OSHA for emergency circumstances, so a wide range of Cal/OSHA safety orders will still apply. And because these are unusual circumstances, there will be additional requirements under Cal/OSHA’s extremely broad injury and illness prevention program safety order, 8 CCR 3203, to identify and address any occupational hazards that may be confronted during cleanup operations that are not otherwise addressed in more specific safety orders.

Please note that the information provided here will also typically be applicable to other types of disaster recovery. And, although Cal/OSHA would not have jurisdiction over cleanup activity performed directly by individual homeowners and renters at their personal residences, the information provided here should be considered by such individuals to help protect their personal safety.

Each cleanup site will typically have multiple potential hazards, which will vary from location to location. Thus, a good rule of thumb is to first review each site and prepare a job hazard analysis (JHA) listing each potential hazard and the steps to be taken to eliminate or minimize each identified hazard. The JHA can then serve as a basis for employee training before work begins at the site. Hazards commonly found at fire cleanup sites include smoke inhalation, unstable footing, damaged structures, electrical hazards, chemicals and other hazardous materials, heat, burning embers, potential further fire outbreak, fall hazards, confined spaces, ergonomic hazards (from lifting, etc.), bloodborne pathogens, insufficient lighting, unusual traffic and traffic patterns, exposure to displaced pets and wildlife, looters, fatigue and potential limited access to communication systems and emergency medical services. Good sources of additional information about fire cleanup hazards include: www.dir.ca.gov/DIRNews/2017/2017-93.pdf, https://www.cdc.gov/disasters/wildfires/cleanupworkers.html and https://www.osha.gov/dts/wildfires/response.html.

Cal/OSHA safety orders typically require that employers address hazards using a hierarchy of controls, starting with engineering (guarding, fencing, etc.) and administrative controls (limiting the duration or extent of exposure, etc.) before turning to personal protective equipment (PPE). However, the unique nature of cleanup sites typically will require heavy reliance on PPE so this Alert addresses those issues in more detail here.

Respiratory protection

It is not possible to know exactly what type of respiratory protection may be required at any particular cleanup site without site-specific air monitoring to determine what air contaminants are present and whether any permissible exposure levels (PELs) are exceeded. However, in most cases of post-fire cleanup, if respiratory protection is not required, but employees wish to voluntarily use respiratory protection, an N95 is the likely type of respiratory protection for employees to utilize. This is also the case for anyone who wants to voluntarily use respiratory protection because they live or work near areas where fires have resulted in poor air quality.

If respiratory protection is required, either as a result of Cal/OSHA compliance obligations or because of an employer’s own procedures, employers must comply with the respiratory protection requirements of 8 CCR 5144. This includes having a written respiratory protection program.

However, for voluntary use of particulate filtering facemasks like N95s, employees do not have to be included in a respiratory protection program. 8 CCR 5144(c)(2). Such employees only must be provided with the information contained on Appendix D to 8 CCR 5144. We also recommend that employees be informed that if they have any question as to whether it is medically appropriate for them to use an N95 or any other type of respiratory protection, they should consult with their own personal medical provider. For employees with certain types of health conditions it may be particularly advisable but for others it can be a health risk to do so and thus the decision should be made in consultation with a medical provider familiar with the employee’s particular medical history.

As many have discovered during the recent California wildfires, N95s can be in short supply during a disaster. Thus, even for potential voluntary use, employers may want to assist their employees by preparing in advance to have N95s available.

Gloves

For employees involved in cleanup operations, sturdy work gloves, typically cut-resistant gloves, will often be appropriate. Where there may be exposure to chemical hazards or bloodborne pathogens, impermeable latex and nitrile gloves may be appropriate and sometimes double gloving with both impermeable and cut-resistant gloves may be appropriate. Employers will want to have a sufficient supply of all appropriate gloves in a variety of sizes.

Foot protection

Employees involved in cleanup activities will likely need or want sturdy work shoes or work boots, typically with metatarsal (as an example, “steel toe”) protection.

Eye protection

During cleanup operations, safety glasses or goggles will typically be appropriate.

Head protection

If there is a potential for overhead objects falling, wearing a hardhat is appropriate.

Sturdy work clothing

Employees involved in cleanup operations should be wearing long-sleeve shirts and sturdy work pants to help prevent cuts and abrasions.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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