Employer Requirements Under Cal OSHA’s Wildfire Smoke Regulation

As California battles close to 600 wildfires burning more than one million acres across the state, many areas are experiencing unhealthy and even very unhealthy air quality. During these conditions, employers must comply with the California Division of Occupational Safety and Health (CalOSHA) worker safety requirements to protect outdoor workers from wildfire smoke effects.

Section 5141.1 of Title 8 of the California Code of Regulations was adopted as an emergency regulation in July 2019, in response to devastating wildfires throughout California. Since that time, the emergency regulation has been extended twice by the Occupational Safety and Standards Board, and now expires on January 20, 2021.

The regulation applies to workplaces where the current Air Quality Index (AQI) for particulate matter (PM) 2.5 is 151 or greater. PM2.5 measures tiny particles in the air that measure an aerodynamic diameter of 2.5 micrometers or smaller, which pose significant health risk to a person’s lungs and heart.  A PM2.5 of 151 or greater is classified as unhealthy. Many areas in Northern California reached this level over this last weekend due to wildfires burning throughout the state.

To find the current and forecasted AQI for PM2.5, employers and employees can go to www.AirNow.gov and enter the zip code of the location where employees will be working. The current AQI is also available from the U.S. Forest Service at https://tools.airfire.org/.

While many employers are subject to the emergency regulation, certain workplaces and operations are exempt from its requirements, including:

1. Enclosed buildings or structures in which the air is filtered by a mechanical ventilation system and the employer ensures that windows, doors, bays, and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
2. Enclosed vehicles in which the air is filtered by a cabin air filter and for which the employer ensures that windows, doors, and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
3. Workplaces where employees are only exposed to a current AQI for PM2.5 of 151 or greater for a short time of one hour or less during a shift; and
4. Firefighters engaged in wildland firefighting.

According to CalOSHA regulations, when the AQI reaches unhealthy levels (PM2.5 of 151 or greater), employers that are not exempt from the regulations must take the following actions to protect outdoor workers:

1. Monitor Levels of Smoke at Worksites: Employers must check AQI using the above methods before each shift and periodically thereafter, as needed to protect employee health. Employers may also choose to conduct their own direct measurements at the worksite using methods described in Appendix A of the regulation.
2. Communicate with Employees: Employers are required to establish and implement a system for communicating wildfire smoke hazards to employees in a form that is readily understandable by all employees. The system must include effective procedures for informing employees of the current AQI for PM2.5, communicating protective measures available to employees to reduce exposure, and encouraging employees to inform the employer of worsening air quality as well as any adverse symptoms they may experience, such as asthma, difficulty breathing, and chest pain. Employers must encourage employees to inform the employer of wildfire smoke hazards at the worksite without fear of reprisal.

Appendix B of the regulation provides a sample policy listing mandatory information to be provided to employees.

3. Train Employees: Employers must train employees on the health effects of wildfire smoke, how to check AQI levels, the employer’s communication system and methods of protection, how to access and use respirators provided by the employer, and the right to obtain medical treatment without fear of reprisal.
4. Control Harmful Exposure: Employers must provide enclosed areas for employees to work, such as buildings, structures, or vehicles, where the air is filtered to a PM 2.5 of less than 151. Where this is not feasible, an employer must implement administrative controls such as relocating work to an area with an AQI of less than 151, changing work schedules, reducing work intensity, or providing additional rest periods.
5. Provide Respiratory Protective Equipment: When the AQI is more than 151 but does not exceed 500, employers must provide employees with respirators that are approved by the National Institute for Occupational Safety and Health, such as N95 face pieces, for voluntary use, and must encourage employees to use them.

Where the current AQI for PM2.5 exceeds 500, respirator use is required.

6. Update IIPP’s: Employers are required to supplement or integrate their Illness and Injury Prevention Plans (IIPP) with the requisite wildfire smoke protection information as detailed in the regulation.

Employers are advised to review the regulation at Section 5141.1 of Title 8 of the California Code of Regulations, and to take the above actions as soon as possible to comply with CalOSHA requirements.

This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.