Keenan Briefings


Emergency Regulation Extension: Employers Must Protect Workers from Wildfire Smoke

August 26, 2020

As the widespread wildfires in California continue to burn year after year, Cal/OSHA has extended the Emergency Regulation (California Code of Regulations, Title 8 section 5141.1) requiring employers to protect workers from wildfire smoke a second time. This extension expires on January 2021.

Even areas far removed from the flames experience dense smoke. The Department of Industrial Relations’ (DIR) Occupational Safety and Health Standards Board has determined that the airborne smoke from wildfires poses a significant hazard to outdoor workers. On March 19, 2020, the Standards Board readopted the emergency regulation to protect workers from wildfire smoke hazards for this upcoming fire season.

Wildfire smoke contains very small particles – approximately 1/30th diameter of a human hair – that are easily inhaled into the deepest structures of the lungs. Once inhaled, most of these particles cannot be exhaled and remain in the lungs where they cause damage to the tissues and blood vessels that exchange oxygen and carbon dioxide. These tiny particles aggravate respiratory and other health conditions, such as asthma, heart disease and bronchitis. In the long term, the fine combustion products from such fires can result in future serious illness and disabilities.

The emergency regulation was filed by the Office of Administrative Law (OAL) on April 30, 2020. The new standard will be effective for one more year and will be enforced by Cal/OSHA. The regulation applies when the current Air Quality Index (AQI) for airborne Particulate Matter (PM) 2.5 microns (PM2.5) or smaller is 151 or greater and the employer should reasonably anticipate that employees may be exposed to wildfire smoke in locations where employees could be exposed. (NOTE: a micron is one-millionth of a meter). Employers of outdoor workers are required to take specific steps under this regulation. Following are some of the steps in this emergency regulation:

  • Identification - Identify harmful exposure to airborne particulate matter from wildfire smoke. The employer shall determine employee exposure to PM2.5 for worksites covered by this section before each shift and periodically thereafter, as needed to protect the health of the employee.
  • Communication - As required by section 3203, the employer shall establish and 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 at the worksite without fear of reprisal.
  • Training and instruction - As required by section 3203, the employer shall provide employees with effective training and instruction. At a minimum, this shall contain the information in Appendix B.
  • Control - Control of harmful exposures to employees
  • Sampling - Specific particulate sampling requirements if an employer opts to monitor employee exposure with a direct reading instrument.

Detailed requirements, exemptions and exceptions regarding this emergency regulation are published in the text approved by the OAL, California Code of Regulations, Title 8 section 5141.1.

Cal/OSHA is in the rule making process and has sent out public comment notices on the proposed regulation. An advisory committee has been established, and hearings will be announced regarding permanent adoption while the emergency regulation remains in effect. Meeting details and documents concerning this regulation will be posted on the Cal/OSHA website. The proposed text for the permanent regulation can be found here.

Cal/OSHA put out a News Release on August 20, 2020, reminding employers to protect workers from unhealthy air due to wildfire smoke. The release can be found here.

Please contact your Keenan Loss Control Consultant, Account Manager, Claims Analyst or Risk Management Analyst if you would like more information on the regulation described in this Briefing.

Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.