California's (Current) Wildfire Smoke Regulation
Widespread fires and unhealthy air quality currently affect millions of workers throughout the state. Surprisingly, California does not have permanent rules addressing smoke and other wildfire-related conditions. But the state has adopted an emergency regulation requiring employers to take action when air quality is affected. The regulation can be viewed here.
The emergency regulation took effect in July, 2019, and was set to expire after one year. It was readopted in 2020 and will continue through June of 2021 unless replaced by permanent rules. The status of the regulation and a proposed final rule can be monitored on Cal-OSHA’s website here.
Employers are required to follow the emergency standards when the Air Quality Index ("AQI") reports particulate matter (PM2.5) at 151 (“unhealthy”) or greater and an employer can “reasonably anticipate” that employees may be exposed to wildfire smoke. Current air quality can be viewed by location at www.AirNow.gov or similar local websites.
When covered, employers must:
Identify likely employee exposures to high PM2.5 levels before each shift and periodically as necessary;
Communicate wildfire smoke hazards to employees in a system readily understandable by all affected employees;
Train employees on wildfire smoke, employer procedures, PPE and other issues covered in Appendix B to the emergency regulation; and
Control harmful exposure by providing measures such as access to enclosed areas with filtered air, relocating outdoor work, and distributing appropriate personal protective equipment.
Some employers are exempt from the regulation, such as those with interior areas containing mechanically filtered air, enclosed vehicles with cabin air filters, localized areas below AQI maximums (such as areas above or outside unhealthy air concentrations), and workplaces where employees will be exposed for an hour or less each shift.
Exempt employers should maintain records showing the conditions that exclude them from the emergency regulation, such as plans showing HVAC filtration or records of workplace air quality monitoring.
Failure to comply with the emergency regulation could result in significant penalties, especially if employees suffer health effects attributed to exposure. This is even more significant during the current pandemic, when respiratory protection is essential to workers’ overall health. Worse, failure to comply with the standard might lead to substantial uninsured workers’ compensation liability for “serious and willful” injuries, claims that easily reach six or seven figures where the cost of medical treatment is high.
Employers should pay careful attention to the emergency regulation, their existing Injury and Illness Prevention Policies, and local air quality throughout this and other wildfire events. No easy task while also dealing with a pandemic. But it pays to remain aware of ongoing AQI smoke requirements, as wildfires will likely plague our state long after the current COVID-19 situation resolves.