Cal/OSHA Requires Employers to Protect Workers from Wildfire Smoke

wildfire smoke

As wildfires continue raging throughout California, Cal/OSHA has issued a reminder to employers that they are required to protect their outdoor workers from smoke if the air quality index exceeds 151.

Cal/OSHA has extended an emergency regulation it put in place in August 2019 through January 2021 as it works on a permanent regulation on wildfire smoke protection for outdoor workers in California.

For the safety of your workers and to comply with the regulation, it’s important that you follow the regulations and know when you will need to take action to protect them from outdoor smoke.

The regulation applies when the Air Quality Index (AQI) for airborne Particulate Matter (PM) 2.5 microns (PM2.5) or smaller is 151 or greater in an area where employees are working outdoors. Here are the details of the regulation: 

Identification – When wildfire smoke affects a worksite, employers must monitor the air quality index (AQI) for PM2.5. Employers can monitor the AQI using the following websites:

Communication – Employers must implement a system for communicating wildfire smoke hazards in a form readily understandable by all affected employees, including provisions designed to encourage employees to inform the employer of wildfire smoke hazards without fear of reprisal.

Training and instruction – Employers with outdoor workers need to provide training that covers at least:

  • The health effects of wildfire smoke.
  • The right to obtain medical treatment without fear of reprisal.
  • How employees can obtain the current Air Quality Index (AQI) for PM2.5.
  • Possible actions they must take if the AQI exceeds 150 PM 2.5

Options for protecting workers – The regulation provides three ways employers can protect their workers:

  1. Modifications – If possible, employers should implement modifications to the workplace, to reduce exposure. Examples include providing enclosed structures or vehicles for employees to work in, where the air is filtered.
  2. Changes to procedures and schedules – Another option is to change work procedures or schedules. Examples include changing the location where employees work or reducing the amount of time they work outdoors or exposed to unfiltered outdoor air.
  3. Respiratory protection – Employers also have the option to provide proper respiratory protection equipment, such as disposable respirators, for voluntary use without fit-testing.

To filter out fine particles, respirators must be labeled N-95, N-99, N-100, R-95, P-95, P-99, or P-100, and must be labeled as approved by the US National Institute for Occupational Safety and Health.

If the AQI is above 300, fit-testing and a medical examination prior to use would be mandatory.

The takeaway

If you do have outside workers who are confronted with working in smoky conditions, you should start stockpiling two-week supply of N95 masks for all of your workers if you are unable to implement other controls to reduce their exposure.

Cal/OSHA is in the rule making process to make the emergency regulations permanent and has sent out public comment notices on the proposed regulation. We will continue monitoring the agency’s progress on the rules and update you when they have been completed.

Cal/OSHA Working on Rules to Protect Outdoor Workers from Wildfire Smoke

wildfire

Cal/OSHA is developing regulations that would require employers of outdoor workers to provide respiratory equipment when air quality is significantly affected by wildfires.

Smoke from wildfires can travel hundreds of miles and while an area may not be in danger of the wildfire, the smoke can be thick and dangerous, reaching unhealthy levels. The danger is worst for people with underlying health conditions like heart disease, asthma or other respiratory issues.

Many employers want to hand out respirators to outside workers, but while there are no regulations or laws in place for how to protect your workers during smoky conditions, there are regulations governing the use of ventilators – and they are very specific.

The California Code or Regulations, Title 8, Section 5144 states requires that employers that distribute respirators to their employees must take certain steps, such as implementing a written respiratory protection program, requiring seal-testing before every use and conducting medical evaluations of all workers who will wear a respirator.

Cal/OSHA decided to start work on the new regulations after worker groups filed a petition asking the agency to step in and protect people working outside from unsafe air quality caused by wildfires.

What to expect

The regs are still in draft form and are unlikely to be completed this summer for the upcoming fire season. But here is what you can expect:

The draft of the regulations would require that employers take action when the Air Quality Index (AQI) for particulate matter 2.5 is more than 150, which is considered in the “unhealthy” range.

The protections would also be triggered when a government agency issues a wildfire smoke advisory or there when there is a “realistic possibility” that workers would be exposed to wildfire smoke.

All California employers with “a worker who is outdoors for more than an hour cumulative over the course of their shift” would be required to comply with these regulations:

  • Checking AQI forecasts when employees may reasonably be expected to be exposed to an AQI or more than 150.
  • Establishing a system of communication with employees to inform them about the AQI, changes in conditions that can lead to bad air quality, and protective measures.
  • Training their workers in the steps they would have to take if the AQI breaches 150.
  • First-line protections that employers could implement include:
    • Engineering controls, such as providing enclosed structures or vehicles with effective filtration where employees can continue working.
    • Administrative controls like:
      • Relocating workers,
      • Changing work schedules,
      • Reducing work intensity, or
      • Giving them additional rest periods.
  • If none of the above are feasible, the rule provides for a voluntary respirator (without fit-testing and medical examinations) use when the AQI is between 150 and 300.
  • If the AQI is above 300, fit-testing and a medical examination prior to use would be mandatory.

The new regulations by Cal/OSHA are pending with the Cal/OSHA Standards Board, which is expected to vote on them in July, but it’s unclear how quickly they would be implemented.

For now, if you do have outside employees who are confronted with working in smoky conditions, you should start stockpiling a two-week supply of N95 masks for all of your workers.

Top 10 Laws and Regulations for 2019

Every year comes with new laws and regulations that affect employers.

It pays to stay on top of all the new requirements, so we are here to help you understand those that are most likely to affect your business. The following are the top 10 laws, regulations and trends that you need to know about going into 2019.

1 Sexual harassment training

Since 2005, California law has required employers having 50 or more employees to provide at least two hours of sexual harassment training to supervisors every two years. SB 1343 changes this by requiring employers with five or more employees to provide non-supervisory employees with at least one hour by Jan. 1, 2020.
In addition, this training must be held every two years. Employers with five or more workers must provide (or continue to provide) two hours of the biennial supervisory training, as well.

2 Data privacy

Companies that collect data on their customers online should start gearing up in 2019 for the Jan. 1, 2020 implementation of the California Consumer Privacy Act of 2018, which is the state’s version of the European Union’s General Data Protection Regulation.

The law gives consumers the following rights in relation to their personal information:

  • The right to know, through a general privacy policy and with more specifics available upon request, what personal information a business has collected about them, where it was sourced from, what it is being used for, whether it is being disclosed or sold, and to whom it is being disclosed or sold;
  • The right to “opt out” of allowing a business to sell their personal information to third parties;
  • The right to have a business delete their personal information; and
  • Not be discriminated against by opting out.

The law applies to businesses that:

  • Have annual gross revenues in excess of $25 million,
  • Annually buy, receive for their own commercial purposes, or sell or share for commercial purposes, the personal information of 50,000 or more consumers, households or devices, and/or
  • Derive 50% or more of their annual revenues from selling consumers’ personal information.

    3 Independent contractors

While this legal development happened in 2018, now is a good time to go over it. In May, the California Supreme Court handed down a decision that rewrites the state’s independent contractor law.

In its decision in Dynamex Operations West, Inc. vs. Superior Court, the court rejected a test that’s been used for more than a decade in favor of a more rigid three-factor approach, often called the “ABC” test.

Employers now must be able to answer ‘yes’ to all three parts of the ABC test if they want to classify workers as independent contractors:

  • The worker is free from the control and direction of the hirer in relation to the performance of the work, both under the contract and in fact;
  • The worker performs work that is outside the usual course of the hirer’s business; and
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hirer.

The second prong of the ABC test is the sentence that really changes the game. Now, if you hire a worker to do anything that is central to your business’s offerings, you must classify them as an employee.

4 Electronic submission of Form 300A

In November 2018, Cal/OSHA issued an emergency regulation that requires California employers with more than 250 workers to submit Form 300A data covering calendar year 2017 by Dec. 31, 2018. The new regulation was designed to put California’s regulations in line with those of Federal OSHA.

Starting in 2019, affected employers will be required to submit their Form 300A data by March 2. For instance, the 2018 summary would have to be posted before March 2, 2019. The law applies to:

  • All employers with 250 or more employees, and
  • Employers with 20 to 249 employees in specified high-risk industries.

    5 Harassment non-disclosure

This law, which takes effect Jan. 1, 2019, bars California employers from entering into settlement agreements that prevent the disclosure of information regarding:

  • Acts of sexual assault;
  • Acts of sexual harassment;
  • Acts of workplace sexual harassment;
  • Acts of workplace sex discrimination;
  • The failure to prevent acts of workplace sexual harassment or sex discrimination; and
  • Retaliation against a person for reporting sexual harassment or sex discriminat

The big issue employers will need to watch out for, according to experts, is that the new law could actually keep the employer and employee from reaching resolutions for disputes.

We will cover the five other top laws and regulations in our next blog post. 

Ruling May Open Firms up to Prosecution, Employee Suits in Safety Cases

The California State Supreme Court has issued a landmark opinion that paves the way for employees who have been injured at work due to their employer’s violations of Cal/OSHA regulations to sue for unfair business practices and other violations of the state’s Business and Professions Code.

This broadens the scope of employer liability in workplace injuries and steps beyond the workers’ comp bargain that in exchange for having their medical bills and lost wages paid for, employees give up the right to sue their employer for creating an unsafe work environment that may have contributed to their accident.

The California Supreme court – in Solus Industrial Innovations, Inc. vs. Superior Court – ruled that the federal Occupational Safety and Health Act does not bar employees or prosecutors from bringing unfair competition and consumer protection claims based on workplace safety and health violations.

This opens up a new possible area of liability for employers, according to an analysis of the decision by Seyfarth Shaw LLP.

Solus may result in a spike in workplace safety and health litigation against employers,” wrote Joshua M. Henderson, partner in the complex discrimination litigation practice group of Seyfarth.

 

Case background
The case stems from a 2009 incident when two Solus wokrers were killed after a water heater exploded. The equipment exploded when its safety valve malfunctioned and because there were no other safety features on the heater “due to manipulation and misuse,” according to Cal/OSHA.

Afterwards, the California Bureau of Investigations launched an investigation, as it is required to do after workers are killed on the job. It forwarded its findings to the Orange County district attorney, who in turn charged the plant manager and maintenance supervisor with felony violations of the Labor Code.

Orange County prosecutors also filed a civil action, accusing Solus of:

 

  • Violating the state Unfair Competition Law – It alleged that Solus, by maintaining an unsafe work environment, had engaged in unfair and unlawful business practices
  • Violating the state Fair Advertising Law – It alleged that the company had engaged in false advertising by making “numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards,” in order to attract and retain customers and employees.

 

The DA sought over a million dollars in civil penalties in the lower court case. Solus asked for the trial court to dismiss the case, but the court rejected the motion. On appeal of the decision, the Court of Appeal reversed, saying that the federal Occupational Safety and Health Act pre-empted state unfair competition law, which barred the civil action.

The state Supreme Court ruled that the case could proceed, which sends it back to the local court for hearing. In reversing the Court of Appeal, the high court said that since California has its own workplace safety enforcement mechanism, state law can indeed be used.

The case now goes back to the trial court for action on the DA’s civil claims.

 

Why it’s important
Seyfarth’s Henderson said employers should be concerned because:

  • Solus does not require a final order of the Cal/OSHA Appeals Board affirming the underlying administrative citations. This means that an employer could theoretically beat back Cal/OSHA citations and still be sued under the Business and Professions Code.
  • An employee or DA could sue a company for Business and Professions Code violations in relation to a workplace injury even if OSHA does not issue a citation. Employees may attempt to establish injury in fact in litigation without resorting to filing an administrative complaint with the Division.
    Damages are barred under the unfair competition law, but restitution and injunctive relief are not. The bar would be high though, as an employee must prove they had some kind of economic injury.
  • The statute of limitations is four years for unfair competition claims and three years for false advertising claims.