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All Employers Must Train and Protect Outdoor Workers from Wildfire Smoke

This new emergency regulation will apply to pool service companies and those who work in the pool construction business.  An action plan for employers is provided at the end of the article.

Effective July 29th, all California employers are mandated to provide new workplace training and worker protection from the dangers of wildfire smoke inhalation under new emergency regulations recently adopted by CAL-OSHA. 

Current Situation

Wildfires in California became dramatically worse in 2018, causing deaths and economic damage that dwarfed previous years. The catastrophic Camp Fire was the deadliest and most destructive wildfire in state history, killing 86 people and destroying 18,804 structures. On January 8, 2019, Governor Gavin Newsom issued Executive Order N-05-19, declaring that 2018 was the most destructive fire season in California history, with over 7,600 wildfires burning across 1,846,445 acres. The Order states that “…the reality of climate change – persistent drought, warmer temperatures and more severe winds – has created conditions that will lead to more frequent and destructive wildfires.”  

Consistent with the Governor’s Order, research conducted by the U.S. Environmental Protection Agency found that fires are increasing in frequency, size and intensity, creating the potential for greater smoke production and chronic smoke exposures in the United States, particularly in the West. This suggests that the 2018 wildfires were not merely an aberration, and that state agencies should be prepared for a high likelihood of widespread exposure to wildfire smoke in 2019 and beyond. 

Government Response

Petition 573 was filed with the CAL-OSHA BOARD which requested an emergency rulemaking procedure to address the potential harm posed to outdoor workers by wildfire smoke. The Petition sought an emergency standard which would apply to outdoor occupations including agriculture, construction, landscaping, maintenance, commercial delivery, and “other activities not considered to be first response,” such as work performed by “nurses, caregivers and school staff evacuating patients, residents and students.” 

How Summary of Existing Regulations and the Effect of the Proposed Regulation 

Existing law, Title 8, section 3203, “Injury and Illness Prevention Program (IIPP),” establishes a general framework for the identification, evaluation, and correction of unsafe or unhealthy work conditions; communication with employees; and employee safety and health training.  Existing law states that a “harmful exposure” is an “exposure to dusts, fumes, mists, vapors, or gases” which is either:

  1. In excess of any permissible limit prescribed by section 5155; or 
  2. Of such a nature by inhalation as to result in, or have a probability to result in, injury, illness, disease, impairment, or loss of function

No permissible limit for PM2.5 is prescribed by section 5155, and no existing regulation specifies when wildfire smoke may result in injury, illness, disease, impairment or loss of function. Existing law lists the hierarchy of controls that employers must follow to address employee exposure to harmful air. 

Existing law establishes that respirators “applicable and suitable for the purpose intended” must be provided “when such equipment is necessary to protect the health of the employee.” To determine when respiratory equipment is necessary, section 5144 requires employers to “identify and evaluate the respiratory hazard(s) in the workplace” and “include a reasonable estimate of employee exposures to respiratory hazard(s) and an identification of the contaminant’s chemical state and physical form.” 

Section 5144 does not expressly state the protection necessary for wildfire events, the concentration of PM2.5 necessitating respiratory protection, nor does it identify a type of respirator providing at least minimally effective filtration of PM2.5 from wildfire smoke exposure, or make specifically clear what circumstances and conditions in which voluntary use of such respirators could occur in permissible accord with existing Title 8 respiratory protection requirements. Existing law, Title 8, section 5155, “Airborne Contaminants,” sets permissible exposure limits for substances. No permissible exposure limit is listed for either wildfire smoke or PM2.5. 

New Section 5141.1. Protection from Wildfire Smoke

The emergency standard, new section 5141.1 establishes the application of the proposed regulation to all workplaces where the current Air Quality Index (AQI) for PM2.5 is 151 or greater and the employer should reasonably anticipate that employees may be exposed to wildfire smoke. 

The regulation requires employers to:

Measure Air Quality for Outside Workers

Be able to measure the air quality of employee workplaces before each shift and periodically thereafter, as needed.  Specifically, obtain the current AQI for PM2.5. PM2.5 refers to atmospheric particulate matter (PM) that have a diameter of less than 2.5 micrometers, which is about 3% the diameter of a human hair. An employer may acquire this information by checking specified government agency websites or by measuring the PM2.5 levels at the worksite.

Develop an Emergency Action Plan (EAP)

The idea is to allow employers and workers during an emergency to act quickly, without evaluating the possible application of engineering or administrative controls. The plan should include:

  • A system for communicating wildfire smoke hazards with employees in a form readily understandable by all affected employees. This includes the current AQI for PM2.5 and related protective measures.
  • A system for employees to inform their employer about worsening air quality or possible symptoms of wildfire smoke exposure and to provide effective training and instruction to employees. The mandatory minimum training requirement is specified in Appendix B
  • Engineering controls, including a plan for evacuation to enclosed structures or vehicles where the air is filtered.
  • Administrative controls if engineering controls are not feasible. Administrative controls can include relocating work, changing work schedules, reducing work intensity, or providing additional breaks.
  • Access to respiratory protective equipment and how to properly use it. If engineering or administrative controls are insufficient to keep the employees expose to wildfire smoke below PM 2.5, the regulation mandates that employers provide respirators for employees’ voluntary use, except in certain conditions respirators are required. 

How to Develop an Emergency Action Plan (EAP)

Respiratory Protection

The complete regulation can be found at: https://www.dir.ca.gov/OSHSB/documents/Protection-from-Wildfire-Smoke-Emergency-apprvdtxt.pdf

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