The Pacific Northwest experienced record high heat temperatures and poor air quality due to wildfires the past few summers. Last year, Oregon OSHA adopted temporary emergency rules following a historic heat wave to protect workers from high heat and wildfire smoke, and their counterpart in Washington did the same. Both of those emergency rules, however, sunsetted by the fall of 2021.
With summer approaching (allegedly), both agencies have renewed the guidance, and employers throughout the Northwest need to be prepared to comply with the applicable rules in short order.
OREGON
Oregon OSHA recently adopted new, permanent rules to protect workers during the summer from excessive heat and wildfire smoke. The new rules apply to both outdoor workers and, when there is no climate control, indoor workers. The new high heat rules take effect June 15, and the wildfire rules take effect July 1.
High-Heat Rules: Oregon employers must:
- Provide access to shade areas, and cool, potable drinking water for employees when temperatures equal or exceed 80 degrees. Shade areas have to be:
- Either open to the outside air on at least three sides or have fans/AC for cooling;
- Able to cover the number of employees taking their break at that time;
- Located as close as practical to the area where the employees are working;
- Able to accommodate the employees during meal periods; and
- Of a sufficient thickness and shape to provide a sufficient shadow (when using trees or other vegetation).
- During high-heat, increase communication in a language readily understood by the employee and implement one or more of the following practices to identify employees experiencing heat-related illness:
- Regular communication with employees working alone, such as by radio, phone, or other means;
- A mandatory “buddy system”; or
- Other equally effective means of observation or communication.
- Increase rest breaks at 90 degrees or greater.
- Provide annual training to supervisors and employees, create and implement acclimatization plans, a heat illness prevention plan, and an emergency medical plan.
Wildfire Smoke Rules: Oregon employers must:
- Provide filtering face piece respirator (such as N95 masks) for workers to use once the air-quality index (AQI) reaches 101 (or “unhealthy for sensitive groups”).
- Provide administrative or engineering controls to reduce smoke exposure, such as changing work locations or using an HVAC system to filter smoke.
- Require the use of respirators once the AQI reaches 251 and ensure that all employees use respirators at 500 AQI (considered “hazardous”).
- Monitor employee exposure to wildfire smoke when employees are, or are likely to be, exposed to an AQI of 101.
- Provide information and training before employees are exposed. Training must be provided in a language readily understood by the employee and cover topics specified in the new rule.
Certain workplaces and operations are exempt from these standards. For example, neither the wildfire nor heat rules apply to employees working from home, except for training requirements regarding excessive heat. Additional exemptions are set forth in the rules.
WASHINGTON
Washington’s Department of Labor & Industries (L&I) opted to adopt similar emergency rules to what it did last year, which are effective June 15, 2022 until September 29, 2022. Like their Oregon counterpart these rules include:
High-Heat Rules: If and when workers will be working in temperatures of 89°F or higher (note that where protective layers or non-breathable clothing must be worn the threshold is lower), employers in agriculture, construction or industries where employees perform work outdoors for more than 15 minutes in a 60-minute period must:
- Provide enough sufficiently cool drinking water for workers to consume at least a quart an hour.
- Provide sufficient shade that is large enough and close enough to workers to offer some relief, just not in a location that would deter its use such as behind a port-a-potty, or where there are snakes or other dangerous wildlife or wasps. In the alternative, temperature-controlled environments like air-conditioned trailers or misting stations can be used.
- Encourage and allow workers to take paid preventative cool-down breaks as needed but not less than the mandatory 10 minute paid preventative cool-down break every 2 hours.
- Adopt a protocol for supervisors and employees to communicate about and observe signs and symptoms of heat illness when temperatures are 89°F or hotter.
These new rules supplement the current requirements that employers have an outdoor heat exposure safety program with training and appropriate measures in place to properly respond to workers experiencing heat-related illness symptoms. This includes temperature monitoring and preventative measures like a “buddy” system, regular check-ins by phone or radio, or similar means to be able to spot and respond to signs of heat-related illness. If a worker becomes ill, they must be relieved from duty, given shade, water, and other means of cooling down, and monitored/assessed for further medical attention.
Wildfire Smoke Rules: Employers with workers who may be exposed to wildfire smoke on the job must:
- Monitor employee exposure to wildfire smoke.
- If the AQI reaches 69 or more, employers are encouraged to provide respirators for workers to use at no cost to them, and must provide them for workers to use voluntarily once the AQI is at 101 or higher. Respirator use must be required when particulates from wildfire smoke are measured at 555 micrograms per cubic meter or higher, a level both extremely hazardous and rare that is beyond the top of the AQI scale of 500.
- Address wildfire smoke response and outdoor heat exposure in their written Accident Prevention Plan, and train workers on the hazards, mitigation steps, and plans for responding to problems before they work in heat or wildfire smoke.
L&I has indicated it will proceed with formal rulemaking with the intention to make these rules, or something similar, permanent next year.
Miller Nash’s Employment Team is ready to assist employers with questions, guidance, or support with adopting workplace safety rules to address these new standards for excessive heat and wildfire smoke.
The legal issues impacting workplaces are ever changing (Employment Law in Motion!) and since publication, new or additional information not referenced in this blog post may be available. Employers should feel free to call on the Miller Nash team if you have questions or need assistance, and always consult with an attorney for legal guidance.
