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California Employers Getting First Test of Wildfire Smoke Regs

Oct. 31, 2019, 10:45 AM

California’s raging wildfires are testing the state’s new emergency smoke protection standards for workers as employers respond to unhealthy particulate levels in the air.

The unique-to-California emergency regulation adopted last summer requires employers to provide respirators to workers, communicate and educate workers on how to use the masks, and alter schedules when fine particulate matter reaches certain levels. Add to that requirement California’s law mandating every employer have an employee illness and injury prevention plan, or IIPP, and employers are on notice that they must update their compliance strategy.

Where the smoke regulation applies, “I think you absolutely need to update your IIPP to include this information and these requirements,” Joshua Henderson, a Seyfarth Shaw LLP partner who advises employers, said Oct. 30.

“Given that these conditions appear to be the new normal, I think you’re going to see employers incorporate these requirements going forward in their IIPP, obviously with the appropriate changes depending on where Cal/OSHA” makes changes from the emergency regulations, Henderson said.

The California rule covers employers who should reasonably anticipate that workers may be exposed to wildfire smoke. At the forefront of concern are those immediately affected by the smoke, including agricultural workers, outdoor laborers, and others who work outdoors, said Nicole Marquez-Baker, senior staff attorney with the California worker advocacy nonprofit Worksafe Inc.

Worksafe, the California Rural Legal Assistance Foundation, and the California Federation of Labor last December petitioned the California Department of Occupational Safety and Health, or Cal/OSHA, for an emergency standard before the 2019 wildfire season.

Employers seeking guidance can look to the state’s heat illness prevention standard that kicks in when temperatures rise, Marquez-Baker said. That rule also requires that workers get breaks and that training materials are translated into multiple languages.

“We definitely need to think about how are we going to get the word out so that employees know and workers now what their rights are and employers know what their responsibility is,” she said.

Triggering Events

Smoke from wildland fires combine easily inhalable particulates with other chemicals, including benzene, carbon dioxide, carbon monoxide, formaldehyde, and polycyclic aromatic hydrocarbons.

The federal Environmental Protection Agency along with California agencies provide online regional and local air quality measurements and forecasts.

Employers must look to the Air Quality Index to know when the requirements are triggered. The Air Quality Index for fine smoke particles—particulates with a diameter of 2.5 micrometers or smaller—must be greater than 150, on a scale of 0 to 500, with 500 being the worst. The state is considering dropping the AQI threshold level to 100. An AQI above that level is considered unhealthy for sensitive groups.

The process of adopting a permanent regulation is just beginning as the agency considers some of the comments received at an Aug. 27 wildfire smoke committee advisory board meeting. One question is how to cover workers who aren’t exclusively outside, such as warehouse and hotel workers, but are intermittently exposed. Already raising issues of cost and compliance are Sempra Energy’s San Diego Gas & Electric, California Attractions & Parks Association including Disneyland and Six Flags, and the California Hospital Association.

The emergency regulation sunsets in January but could be extended for up to one year after its July 30 adoption date while Cal/OSHA works to make the regulation permanent, agency spokesman Frank Polizzi said Oct. 30.

Preventative Masks

The emergency regulation doesn’t apply to enclosed buildings where the air is filtered through a mechanical ventilation system, although employers still can offer masks to workers, said Henderson. The most commonly available mask is the N95, an oval, disposable mask that fits over the user’s nose and mouth and filters out particulates.

“You can still provide N95 masks for voluntary use. We do that here at my law firm. It’s not for the folks working inside but we provide them for folks if they‘re going out to lunch in the Financial District,” Henderson said.

“It’s good human resources management. That’s what it is. And being a good employer I think oftentimes requires going beyond the letter of the law. And that’s what we’re doing at Seyfarth.”

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com