Episode 16: Regulations May Require Employers to Monitor Air Quality/Provide Respirators

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's Executive Vice president and General counsel. And today we are welcoming a new guest to the podcast, Cal Chamber policy advocate Robert Moutrie. Robert, welcome.

Thanks, Erica. Good to be here.

Well, so one of the areas. One of the many areas that Robert focuses his time on involves Cal osha. Today, Robert is going to talk to us about some regulations pending before Cal OSHA that will be impacting many employers. But before we get started and dive into the regulations, Robert, what is Cal osha?

Yeah, let's start at the top level. Cal OSHA is under the DIR and basically handles all regulation of workplace safety, covers just about every employer in the state with some very small exceptions, and covers everything from what kind of rails you have to have on high spaces to how much of any chemical can be in the environment, everything influencing workers in the workplace.

Okay, so Cal OSHA was the agency that promulgated the heat illness regulations, correct? Yes.

Heat illness is one of the recent big ones.

Okay. And that's one that I think a lot of employers are familiar with because we've had to live with it for a while.

Right.

So CALOSHA different from the legislature, correct?

Yes. The regulatory process kicks into effect after legislation is passed. Usually it can be triggered a number of ways, but the legislation will be broader. And the regulation that Cal OSHA will draft and implement is much more detailed and much more precise to the workplace.

Okay, so we know that that California was hit with a series of wildfires last year and the year before. That had huge impact not only on the California population, on homeowners, on workers, on employers. It impacted pretty much all segments of California's population. And last year, there was a petition that was filed that urged or brought forth concern over the need to protect workers who work outside in areas where the air quality meets or exceeds unhealthy levels. And so when we're talking about air quality, are we talking about the. Is it the AQI?

Yeah, that's the background. So in late 2018, some workers groups filed a petition to have OSHA step into this and promulgate regulations based on the aqi. AQI is a number that's spread around by a number of state agencies and used as a standard measure of what the air quality is. Now, an important note as we talk about this is that the AQI, as a general reading, is broken into, like, a number of different tests, and they use the worst conditions for everyone's knowledge. Specifically, as we talk about the wildfire Regulation that is limited to 1 AQI, the PM2.5 AQI, that's most related to smoke hazards.

Okay. So for the average individual out there, and I think with our iPhones and whatnot, a lot of us were able to be a little bit more in touch with the aqi, particularly when the horizon was full of smoke and there was legitimate concerns for adults, infants, children, those with asthma. And so, of course, you're looking at the AQI to see whether it's healthy to go outside and enjoy the day here. We're talking about kind of a segment of the aqi, Correct?

Right.

Okay. Let's try not to get too much in the weeds here, even though it could be fun to talk about. But in essence, what are these regulations attempting to do?

The background issue that existed in the prior wildfires. Right. Was that as the air quality worsened, the employers were kind of in a difficult situation vis a vis the workers, because you want to hand out basic protections, respirators that'll do filtration of the smoke hazards. However, there was an existing regulation, Section 5144, which basically said if you're going to hand out a respirator, you have to do other things. You have to do some fit testing and some medical evaluation, make sure it works for the individual, and you have to have professionals do those evaluations. So the problem is I can't just hand out respirators because I need these testings. But clearly something was needed because smoke was out there.

Right.

And so these regulations were initially brought up to fix that if you're an outdoor worker. The initial concept, and we'll get into the details in a sec to a degree, but the concept is these allow workplaces to continue working while providing some protection to workers without going through the fit testing. And the other kind of more onerous regulations that make it hard to do in an emergency situation, I could imagine.

It would be very difficult to bring in a physician or someone qualified to determine whether you're fit and whether the mask is fitting appropriately and whatnot. Definitely an emergency situation.

Right.

Okay. So where are we with these regulations? Maybe we can talk just briefly about what they're trying to do and then we could talk about what employers would have to follow them.

Right. So there's three issues there. Procedurally where we are, is that they are getting to late in the process. The division, which is a subdivision in osha, has already made their final draft and sent it over to the Standards Board. Standards Board is the board that actually votes on the text. They're going to talk about it at the June meeting and at the July meeting, they're going to vote. So we're going to have these voted on and passed. Every indication is very soon as to what they do. Right. So what they do is they create a system where when the AQI hits a certain point, they are triggered and they go into effect at the AQI of 150 for PM2.5. And at that point, employers have to write a handout to employees. They have to provide some discussion, keep them apprised of what the air quality is and give them the option of if they can't do it an easier way, providing respirators.

So as far as notifying the employer, is this like a pamphlet or a notice that the employer would have to provide to the employee? And I would imagine that it would include information about how to protect themselves or some of the things they should be concerned about when the AQI hits unhealthy levels.

Right. So the present text that's been put out there, and this may be tweaked a little bit, but it will not be substantially altered, includes what they call Appendix B, which is a brief handout for the employee which says basically, air quality is roughly, here's what this means. Smoke is hazardous for these reasons. You may not feel it. And then the employers will have to put in some site specific information on how they deal with it. You know, our procedure at this workplace is we will give you these, talk to your manager on this. But generally it's a form that the employers can hand out that will give them the background of the employees. And then in addition to handing that out, they'll give them that with the masks. And that way employees have the information and the ability to protect themselves.

Okay. So clearly this is a lot for the employer to be aware about and a lot of information that the employer needs to be aware of to know that they have to provide the pamphlet. But more importantly, to have these masks available.

Yes. And so just to skip the details and to get to what employers should be thinking about now, briefly, the big picture for employers to think think about this now is one, you need to start thinking about how you're going to monitor the aqi. Because this regulation is triggered when the AQI is a certain point. There's a couple of ways to do that and these are laid out in the draft text of the regulation. But the short version I'll give you is you can set up daily email updates from the relevant agencies and they'll send you what's the AQI today in your area and what's the forecast tomorrow? You can also get an AQI detector on Amazon or something simple. These are about 70 bucks. So you can get one of those and put it at a work site and just glance at it. And the third way is you can just go on the website. Like you said, a lot of people have iPhones, but some workplaces don't. If you're out in a rural area, if you're traveling, Internet access can be more problematic. So any of those methods you can use to check the aqi. So employers should get ready to do that. The second thing they should get ready to do is, like you said, if they can't do it in an easier engineering, administrative way, like for example, closing off the building and putting in a filter for this or rescheduling the work or just moving the work to a different site. If they can't do those things, which is going to be most workers, most work sites, I should say, then they should start looking at stockpiling. N95 masks. I would advise thinking about having enough on hand for about all of your workers for about a two week period. Because just looking at the recent fires, right, that's about a duration where if there's a large fire, I think that's a pretty safe back end. Probably most events won't last that long, but those are the two big elements employers should be thinking about.

Okay, when we talk about employers, are we talking about all employers or are we only talking about employers that might have outdoor workers or have warehouses where there is a big exposure to the outdoor air? But what about also indoor workers? Maybe the building's air filtering system isn't very good. So what happens if the AQI outside is above 150? You're inside and let's say the workers still see smoke inside. So who exactly is this targeting?

So let's break that up. The simplest definition for how I would look at who this affects is anyone who has a worker who is outdoors for more than an hour, cumulative, not an hour straight, but cumulative over the course of their shift.

Wow.

To deal with your indoor example, right, let's say that you're an employer that has indoor workers, but you're in an older building. Maybe your filtration exists, but it's not top of the line. Now, the way the regulation is written now that is acceptable. You're not required to have top of the line filtration put in. That was in an earlier draft. It was removed after some pressure from our community, which is a big help because almost no buildings have brand new air filters that were all built in the past, as an axiomatic truth. So for that reason, if you're indoors and there is any form of filtration, as presently drafted, that's effective. Now, let's take the opposite example. Let's say you're in, you know, an outhouse. Easy. A very simple structure, roof, walls, nothing else. Not really sealed. Now, at that point, you would need to look at providing the masks. So that's a simple categorization of who falls under this.

Okay. But I think that's a good place to start and at least a place for some of the employers that are listening today to figure out where am I in this mix? Do I have. Workers are out there for a cumulative of an hour, which I could see really brings in a broad base of employers. It does for those employees that might be going in and out, working in the warehouse, working car washes, different places where there's a lot of traffic from inside to outside. For those employers to know that this is coming and there's some things that they're going to have to do. All right, so for those employers that would like a little bit more information or would like to follow this, where do you think they can go?

So there's a couple of resources. The first thing I would recommend is if you are feeling brave, the DIR's website on this topic will direct you to the text of the regs, which, before anyone panics, are only about eight pages with all the handouts, so they're not that long. And that will also give you, more importantly, the dates and the times of the Standards Board meetings. So if you are interested in what concerns the Standard Board has, what changes there are, and where to voice your position and thoughts and concerns as an employer. Right. That is your opportunity to do so. So on there you can find the Standard George meeting. It's. That's June 20th for the next one, and then July is the final one. I believe that's July 17th. But don't quote me. I can check. Those are the places that you can voice your opinion as well.

Okay. And then I'm guessing that Cal Chamber will provide continued updates to our members through the Alert publication and through our various blogs and other means of getting information out. Because this is a really important issue and one that you're working very hard and closely on.

Absolutely. We will continue putting out information as changes develop.

Okay. And one last thing. I know that it's getting hot. We've had some windy days. And of course, that also brings concern over wildfires. When would employers have to start following these new rules?

Yes. So that question kind of has two components to the answer. First, when they go into effect, and second, how they're triggered.

Okay.

So as to when they go into effect, they'll be voted on in July. The board can have them go into effect as soon as 15 days if they're emergency. So I would just advise employers to be thinking in August. I need to be ready for this.

Excellent.

And then in terms of triggering. So these regulations are not constantly in effect. Like I said, they will go into effect when the AQI rises to a certain level and. And when employers have a reasonable expectation of exposure. And that's the exact language.

Okay.

Basically, what that means is if you hear about a fire, if you smell smoke, if an employee says, I smell smoke or I see a fire, those two things will go into effect, and that's when you need to start taking the action, complying.

All right. Great information and a great way to end today. So thank you so much.

Thanks for having me.

Thanks for joining us on the workplace. Please comment, share, and subscribe to Cal Chamber's podcast@calchamber.com.

Sam.