Episode 22: Emergency Wildfire Smoke Protection Regulation Now In Effect—What Employers Need to Know

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Calamber's executive vice president and general counsel. With me today is Robert Moutrie of Cal Chamber's policy team. Robert specializes in Cal OSHA issues. A few weeks back, Robert was here on the podcast discussing pending regulations for employers that deal with air quality issues created by smoke from wildfires. Robert is here today to update us on where things stand with these regulations. Welcome, Robert.

Good to be here again, Erica.

Thanks. Nice to have you. So, Robert, can you please refresh us on what regulations we are talking about?

Yes, so we are talking about wildfire smoke protection regulations, which, when we last spoke, were coming down the pipe and the Standards board hadn't gotten to vote on the final form, but as of July 18, the final form has been passed. So now they're much more urgent.

And what are the implications for employers with these regulations?

Broadly speaking, what employers need to begin doing is, let's say that you hear about a fire, you smell smoke, you need to be monitoring the AQI in your area, which you can do via government websites or an email alert, just checking how much smoke is in the air. And then if it reaches certain levels, you're going to need to take certain steps with your employees passing out some protection, things like that.

Okay. So, Robert, these are specific to wildfire pollutants, is that correct?

Yes, a specific PM2.5 reading under the AQI, which is related to wildfires.

Right. And it is summertime, so we always know that the chances of wildfires blooming are at a higher degree than in other times of the year.

Yes, that's absolutely the case. And it's one of the reasons these were emergency, because they wanted to be in place before the fire season.

So what is the timeline that we're looking at right now, and what should employers be thinking about now to comply?

So the timeline for these to go into effect is pretty short. We expect them to go into effect depending on how fast. Some state agencies move somewhere between August 2 and August 13 to get ready for that. What employers need to do are a couple of things. First, you have to look at it and determine if this applies to you. And that's going to matter if you're an outdoor workplace. If you're an agricultural site, it's different than if you're an office building. So that's the first thing. Rule of thumb, if you have an employee who's outdoors for more than an hour in a day, in their shift, I should say, then that employee is going to fall under this, but not necessarily only indoor employees will. What do you need to do next? Is you need to set up monitoring the AQI that terms of looking at government websites, carb Air Resources Board, those kind of sites will have that for you.

What about the Weather Channel and the Apple apps? Do those have. I know that they do, or some of them have the aqi. Are they going to give us the specific listing that's required under these regulations, the PM2.5 level, without speaking too broadly.

To all of them? Generally, those will not give you that specific level. And it's important you distinguish that because there are general AQI readings and they're specific to PM2.5. So we would say that employers should be looking to those government websites, Carb Air Resource Board and others that will be able to Split out the PM2.5 level you need to look at. And then there's the next steps. After monitoring and figuring out if it applies to you, there's the compliance, which is going to involve providing some information to your employees and watching that level so that when it hits the thresholds that trigger, which as we discussed last time, are PM2.5 level of 150 and then a different threshold at 500, you have to take the compliance steps at those points. At 150, it's going to be making respirators available generally to your employees. You don't have to force them to wear them. They don't have to wear them. They don't want to. You don't have to do medical testing or fit evaluation, but they have to have the option of putting on a respirator if they want to. And then at 500 things become a little more compulsory under this text. At 500 they have to be fit tested and medically evaluated, which takes time and money, and they have to wear it. There's some issues there, which we'll get to, but what I can tell you, thankfully, is that 500 is very uncommon unless you are just. Just next to a wildfire.

That's good to note. So walk us through an example. Let's say there's a wildfire near Redding. What should employers be thinking about?

Sure. So if there's a wildfire, let's say, if there's a wildfire near Reading and you're. Let's say in Sacramento, you're some distance away. The first thing is that you're going to be monitoring the AQI in your area or the area where you'll have work sites. Some employers have traveling work sites. You'll need to keep that in mind. But you would be watching those websites or setting up email alerts so that when your AQI hits a certain point, you get the email that says, hey, it just hit 150. You need to know that. The next thing you need to think is, okay, The AQI hit 150. Is there a fire going on? Because an aqi could hit 150, especially in urban areas if you're in Los Angeles or others based on car pollution, things like that, that would not be triggering this regulation. So you need to know there's a fire going on and the aqi is about 150. At that point, the employer needs to have respirators on hand to give to employees who are going to be exposed. And you know, without getting too detailed, you likely want to have more than one shift of respirators. Right? Because AQI levels and smoke may be in the area for more than an eight hour shift. You're going to want to have those on hand to hand out. You're going to inform the employees, hey, AQI is about this. Here are these respirators. You'll already have talked to them a little about this. You'll give them the respirators, they have the choice to wear them. At that point, all you have to do is give them the option and keep watching for if the AQI changes.

Okay, so just a clarification. As far as when the employees have the option to wear the respirators, it's.

When The AQI is 150 for a PM2.5 reading.

You mentioned something that I thought was very helpful and that was that email alerts. Because the obligation for an employer and to what degree that they need to act under these regulations is going to differ based on location in this scenario, before employers in Reading are likely going to have more compulsory requirements because they're closer to the fire than an employer maybe in Sacramento, that notices the air quality has decreased, but it may not rise to that level, triggering compliance with these regulations.

Right, Right. You can set up those email alerts. I've got three set up now just for tests for any zip codes you want or different areas. If you're an employer that works in multiple sites, you can also set them up. That way we would encourage employers to starting now. Look at that. Get those set up just so you're familiar with how they come in.

Now the other thing too that pops to mind when we're talking about this is would it behoove employers to also be training their supervisors or those that are, that might be working with the employees that are outside and could be subject to the air quality conditions.

Yes, that's a good point. You are going to have to train the on site supervisors because they're going to be the conduits of that knowledge to be telling the employees, hey, the AQI is at this point now we're going to switch into following the terms of this regulation. You are going to have some training related to that.

Okay, so let's run down a few examples because I think as far as how many employees are outside, what it means to different employers is going to differentiate between how long employees are out there, where they're located and what other things employers could do to keep the employees from being exposed to the unhealthy air quality. An agricultural worker who's outside all day.

Well, this is kind of the typical case that prompted the regulation. So yes, an agricultural worker outside all day, certainly going to fall under this, exposed to outdoor air for all of the hours of the day.

Ok, what about a maintenance worker, someone who might be working indoors and outdoors, Perhaps someone who's responsible for the maintenance of an entire property, including the exterior portions.

Right. So this is where we get into some of the gray area cases. Right. The threshold for the regulation is if an employee is outdoors for more than an hour over the course of a shift. Now this maintenance worker example, if you can anticipate that that worker is going in and out of the building and may or may not, but may be outside for more than an hour, then you'll have to make a case by case. The conservative move would say they may be outside more than an hour. We already have the respirator on hand because we have to. Let's just say you can use that if you want, but that's going to be a case by case determination.

And as far as outdoors for more than an hour, is it cumulative throughout the day or in one hour increments?

It is cumulative. So if you're outdoors for an hour, come inside for an hour, go back outdoors, you're covered.

Wow. All right. I mean, I could see a lot of situations where this could trigger at least having the respirator on site.

Yes, and that's going to be one of the issues that we plan to work with the division on in the future. Regulation and permanent regulation is clarifying that gray area between outdoors for an hour or, you know, exposed to too much outdoor air because there is some questionable area there. Now, one positive note that I can tell you is that at the standards board meeting at the vote on this, the board acknowledged that there were still some ambiguities and issues with the emergency regulation. And one board member, David Harris, who's actually the labor representative, urged the division to keep in mind those ambiguities in enforcement and be cognizant of. And we're hopeful that that will lead to a reasonable enforcement pattern.

Okay. So I think that was good for us to cover the textbook case of an agricultural worker or somebody who. Construction worker, somebody who is outside for the majority of the day, as opposed to a maintenance worker who might be coming, going inside, outside throughout their day, and the obligations that arise in both of those scenarios. So, Robert, where are we and what are next steps at this point?

So the next steps relate to the permanent regulation. This is the emergency regulation. This is going to be in effect for a limited amount of time, a year or so, potentially more. It can be extended. But the good news is that the division has already set the first discussion meeting for the public concern groups to come in and raise their concerns and try to make a better regulation going forward. And the division and the Standards Board both acknowledge this needs to be improved. The first meeting is in August of this year, and we will be there, as will many other groups.

If employers wish to attend and testify, can they find the information on the Cal OSHA website or do they need to go someplace else to find the information?

No, they can find it at the Cal OSHA website under Advisory meetings. You can find the date. These are open to the public. So employers, if they have those concerns, should come in. The regulations text is also available. So all the materials you need are there if you want to look at it and get involved.

Okay, good to know. For those of our listeners who have concerns and feasibility concerns as to whether or not this is even something that is doable in their particular industry, should think about attending and voicing their concerns to the boards that they're heard.

Absolutely. Particularly if I just flag one area which we hope to address in the permanent regulation. There is some remaining ambiguity on a couple of fronts, and I won't get into all of them because it'll get technical at some point. But one of the big question mark areas that we are working on is the scope as to what buildings qualify as closed enough. You know, we talked about outdoor workers, agriculture, maintenance. Those are all, you know, pretty understandably they are outside or they're not. But there's concern about what? About a structure that consistently has open doors or doors that open and close constantly, creating a lot of airflow. Between right. An open air loading bay is a good example where you might load in and out of a warehouse, but the door is open all day or related to that, let's say a fast food restaurant, the door is opening and closing every day. The drive thru window is opening and closing all the time. How much does that need to be open before it doesn't qualify for the indoor exception in this regulation? That's a question that is not really well defined or a solution I should say that's not really well defined and that we hope to get some clarity on in the permanent regulation.

And what exactly is the indoor exception?

So, yes, so presently the regulation is written with the language that and I'm going to have to I hate to quote these documents because they're not very approachable, but I have to here. It's presently written with an exception that quote enclosed buildings or structures in which the air is filtered by a mechanical ventilation system and the employer ensures windows, doors, bays and other openings are kept closed to minimize contamination by outdoor unfiltered air are exempt. Now, obviously there's a lot of language there, but the biggest concern for us is what qualifies as kept closed to minimize. And we will continue to work with the division about it.

Robert, we talked a lot today about the details of these regulations. What are some key takeaways for employers as we end today's podcast?

Well, the biggest things I would push employers to are first start looking at where you're going to get the N95 respirators you need to get. And just to be clear, N95 is a rating for the amount of filtration. These respirators, do they come in a disposable form? You can buy them at hardware stores or on Amazon, but you should look at acquiring them because as these go into effect, more and more people are going to purchase them. Supplies will be an issue and certainly if a wildfire gets started, the supplies will be an issue. So you want to be ready beforehand. The second thing you'll want to do is you'll want to set up the information for yourself. Going to the California Air Resources Board's website and setting at those email alerts. There are other websites you can get that from. The division is going to be publishing a handout which is titled Appendix B. It will be on their Website probably by August 2, by the time this goes into place, which will have a list of those websites for you. That will be a helpful tool for you and you'll want to have that on hand. The third thing is the internal policies and training. You're going to want to start thinking of your mechanisms to convey to the supervisors on site. Hey, here's what the AQI is and to convey information to your employees about what do you need to wear. Those are the big issues. Get the materials on hand, figure out how you're going to get the information, and how are you going to convey that information?

Okay, great. Thank you, Robert, for joining us today.

Thank you. Always a pleasure.

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