Reminder! Cal/OSHA’s new emergency regulation applies to current California wildfires



October 31, 2019

OSHA Alert

Author(s): Rachel L. Conn, Benjamin J. Kim, Maritza Martin

As extensive wildfires burn throughout California and communities are confronted with many different issues, employers must keep in mind compliance with Cal/OSHA’s new emergency regulation on Protection from Wildfire Smoke that is now in effect.

As extensive wildfires burn throughout California and employers and employees are confronted with many issues, please remember that employers must also comply with Cal/OSHA’s new emergency regulation (8 CCR §5141.1) on Protection from Wildfire Smoke that went into effect on July 30, 2019. The emergency regulation applies to workplaces and operations where the current Air Quality Index (“AQI”) for airborne particulate matter (PM 2.5) is 151 or greater and where the employer should reasonably anticipate that employees may be exposed to wildfire smoke. Certain exceptions apply, including employees exposed to a current AQI for PM2.5 of 151 or greater for a total of one hour or less during a shift and employees in enclosed buildings, structures, or vehicles with filtered air when windows, doors, bays, and other openings are kept closed to minimize contamination by outdoor or unfiltered air.

A first step toward ensuring compliance is determining whether harmful exposure exists. If an employer’s worksite is covered by section 5141.1 (meaning the current AQI for PM 2.5 is above 151, employees will likely be exposed to wildfire smoke, and no exception applies), employers must determine employee exposure before each shift and periodically during the day. Cal/OSHA requires checking AQI forecasts and current AQI levels through U.S. EPA AirNow, U.S. Forest Service Wildland Air Quality Response Program, the California Air Resources Board, the local air pollution control district, or the local air quality management district. Unfortunately, these websites are not entirely complete, current, or consistent. If an employer becomes aware of a higher AQI reported by another reputable source or through an employer’s own measurement with a direct reading instrument (allowed by section 5141.1, Appendix A), then the employer should be prudent and use the highest AQI level from the above sources.

If an employer determines that the current AQI for PM 2.5 is 151 or higher, they should communicate to their employees the protective measures available to them and encourage them to inform the employer of worsening air quality and any adverse symptoms (such as asthma attacks, difficulty breathing, and chest pain) that they feel or observe in others. These communications should be in a form that is readily understandable to all employees (translations to other languages may be required). Employers should also implement methods to reduce employee exposure to the environments where the AQI for PM 2.5 is 151 or higher. This will require flexibility and creativity on the employer’s part as they might have to change work schedules, procedures, or locations, and provide, when possible, enclosed structures or vehicles with filtered air.

Employers must also provide proper respiratory protection equipment for employees to use on a voluntary basis when the current AQI for PM 2.5 is equal to or great than 151, but less than 500. Nonsurgical N-95s are the most common type. It is recommended that employers order this equipment in advance because there can be a shortage during emergency situations. If the current AQI is greater than 500, employees are required to wear the respirator and a full written Respiratory Protection Program would be required.

Wildfires also have the potential to affect employee’s daily living situations outside of the workplace as many are left without electricity, water, childcare, and pet care. If possible, employers should consider allowing employees to work from home, use any accrued personal time off, and even consider providing emergency child care services and boarding shelters for their furry pals. The wildfire smoke protection emergency regulation is effective through January 28, 2020, with two possible 90-day extensions. Cal/OSHA is also currently working on a proposed permanent standard.

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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