The Office of Administrative Law on Monday approved CalOSHA’s emergency wildfire smoke protection regulation, which requires employers to take steps to protect employees from wildfire smoke, including providing respirators in some circumstances.
Because regulations were adopted on an emergency basis they took effect immediately upon being approval. Key information employers need to know about this regulation is discussed below. While this information is intended to aid publishers in their understanding of the regulation, CNPA strongly recommends that all publishers read the final regulation for themselves.
The regulation applies to all employers that “should reasonably anticipate that employees may be exposed to wildfire smoke.” Because a wildfire could occur anywhere in the state, in effect this means that all publishers need to be aware of the regulation’s requirements.
The regulation does not exempt any category of employers, but does exempt certain types of workplaces. Most relevant for newspaper publishers are the exemptions for workplaces that consist of either:
1. Enclosed buildings or structures in which the air is filtered by a mechanical ventilation system and in which the employer ensures that windows, doors, bays, and other openings are kept closed to minimize contamination by outdoor or unfiltered air; or,
2. Enclosed vehicles in which the air is filtered by a cabin air filter and the employers ensures that windows, doors, and other openings are kept closed to minimize contamination by outdoor or unfiltered air.
In practice this means that employers will not need to take steps to comply with the regulation for most indoor employees beyond ensuring that the building has a mechanical ventilation system (such as central air conditioning) and that windows and doors are kept closed when there is wildfire smoke in the air. However, if portions of the indoor workplace have doors that stay open for extended periods of time or are frequently opened and closed, such as in a loading dock or busy reception area, the worksite may not be considered exempt and the employer should comply with the requirements of the regulation.
In addition, the employer must comply with the regulation for any employee who spends more than an hour per shift outdoors when the air quality index for PM2.5 (discussed more below) is above 150.
The first compliance obligation covered employers have under the regulation is to monitor the air quality for PM2.5, the term given to particulate matter with a diameter of 2.5 micrometers or smaller, which has been shown to be particularly harmful to health if inhaled. Different obligations are triggered depending on the AQI for PM2.5, so making sure you have a monitoring plan in place is key to complying with the obligation.
The regulation provides several options for monitoring the AQI for PM2.5. The simplest method is to check the AQI readings available from government websites, such as the U.S. EPA’s AirNow website, the U.S. Forest Service Wildland Air Quality Response Program website, the California Air Resources Board website, or your local air pollution or air quality management district’s website.
When the employer should reasonably anticipate that employees may be exposed to wildfire smoke (i.e., when there is an active wildfire affecting the air quality), the employer is required to check the AQI for PM2.5 before “each shift and periodically thereafter, as needed to protect the health and safety of the employee” for worksites covered by the regulation.
What this means in practice isn’t entirely clear. For example, it’s unclear how employers with employees who travel frequently – such as reporters out in the community covering stories – can monitor the air quality for a worksite that is constantly changing. In addition, it’s unclear exactly how often the employer must re-check the AQI after the beginning of a shift.
CNPA has urged the CalOSHA Standards Board to clarify these, and other, issues in their permanent regulation. In the meantime, CNPA recommends that employers use reasonable judgment in implementing their monitoring program. For example, if you know that an employee will be travelling far from the worksite you regularly monitor (e.g., the newspaper office) or to an area near an active wildfire, monitor the AQI for PM2.5 for that area while the employee will be there. Likewise, if the air quality becomes noticeably worse during the course of the workday, re-check the AQI.
The regulation requires employers to provide “effective training and instruction.” The regulation does not provide any guidance as to what form this training is required to take, other than that “[a]t a minimum, it shall contain the information contained in Appendix B.” Appendix B, included with the regulation, is a 4 page document directed to the employee that provides information about the health effects of wildfire smoke, how to check AQI, the employer’s obligations under the regulation, and how to properly put on and use a respirator.
As with the monitoring requirement, CNPA has urged the CalOSHA Standards Board to clarify the training requirement and encourages employers to use reasonable judgment in implementing their training programs. CNPA recommends that, at a minimum, employers distribute Appendix B to employees.
Respiratory protection measures
When the AQI for PM2.5 exceeds 150 at a covered worksite, employers must communicate this fact to employees and must take a series of steps to limit employees’ exposure to unfiltered air. The regulation mandates a hierarchy of controls for the employer to follow.
First, the employer must use “engineering controls” to reduce the exposure to PM2.5 to the extent feasible. This simply means having employees work in enclosed buildings, structures, or vehicles where the air is filtered.
Where engineering controls are not feasible or do not reduce exposure to PM 2.5 to below an AQI of 151, then the employer is to implement administrative controls where practicable. Administrative controls include relocating work to an area with better air quality, changing work schedules, reducing work intensity, and providing additional rest periods.
Where engineering and administrative controls are not feasible or do not sufficiently reduce the AQI for PM2.5, the employer must provide respirators to employees. Respirators must be approved by the National Institute for Occupational Safety and Health (NIOSH) and must have an assigned protection factor that will reduce the PM2.5 levels inside the respirator to an AQI of less than 151. The most common type of respirator which will be suitable for most situations is a disposable N95 mask. NIOSH-approved N95 masks are widely-available from major retailers, and can usually be purchased at a cost of $1.00 or less per mask.
The regulation has two different standards that must be followed for respirator use, depending on the AQI for PM2.5:
1. When the AQI for PM2.5 is between 151 and 500 the employer must provide respirators for voluntary use by employees. Employees are not required to be medically evaluated or fit tested to use a respirator on a voluntary basis.
2. When the AQI for PM2.5 exceeds 500, respirator use by affected employees is required. It is very rare for the AQI for PM2.5 to exceed 500, except when very close to a wildfire. As a condition of requiring respirator use (as mandated by the regulation) employers must ensure that affected employees are medically evaluated to determine whether the employee is medically able to use the respirator. In addition, if the employee will be required to wear a negative or positive pressure tight-fitting facepiece, such as an N95 mask, the employee must also be fit tested. The fit test checks the seal between the respirator’s facepiece and the employee’s face.
The emergency regulation can stay in effect for up to one-year, with reauthorization from CalOSHA required after the first 180 days, and again 90 days after the first extension.
During this time, CalOSHA will be working on a permanent regulation. CNPA will be working with CalOSHA to have ambiguities in the regulation clarified, and to address other workability issues.
Information about the regulation is available on the CalOSHA website. Members may also contact CNPA Staff Attorney Whitney Prout (916-288-6006) for more information about the regulation.