Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Aug 03, 2021

OREGON: Wildfire smoke and more heat rules effective August 9, 2021

Safety and Health 

On August 2, 2021, Oregon OSHA issued two new temporary emergency regulations, one addressing outdoor workers’ exposure to wildfire smoke, and another addressing high heat in employer-provided housing. Both rules take effect on August 9, 2021, although employers have until August 16, 2021, to train outdoor workers on wildfire smoke hazards. These temporary rules will remain in effect for 180 days, buying Oregon OSHA more time to work on permanent rules.

The rules on high heat in employer-provided housing amend existing Oregon regulations on agricultural labor housing at OAR 437-004-1120. Housing operators must provide cooling areas, minimize heat in housing units, provide a temperature display in individual housing units, display Oregon OSHA’s poster, Heat Risks in Housing, and ensure the housing has a working telephone to contact emergency services.

The new wildfire smoke rules apply much more broadly, to all outdoor workers in Oregon. Below are the key provisions:

Action levels: Oregon’s rule sets three action levels based on the outdoor air concentration of Particulate Matter measuring 2.5 micrometers (PM2.5). The first action level occurs when the Air Quality Index (AQI) is 101 or higher (equivalent to a PM2.5 concentration of 35.5 micrograms per cubic meter). The second action level occurs when the AQI is 201 or higher (equivalent to a PM2.5 concentration of 150.5 micrograms per cubic meter). The third action level occurs when the AQI is 501 or higher (equivalent to a PM2.5 concentration of 500.4 micrograms per cubic meter).

Exemptions: The rule doesn’t apply to: (1) enclosed buildings in which the air is filtered by a mechanical ventilation system and you ensure that all exterior openings are kept closed except when people need to enter or exit; or (2) enclosed vehicles in which the air is filtered and all windows, doors, and other openings are kept closed except when people need to open doors to enter or exit. In addition, wildland firefighting activities and certain activities directly supporting emergency or firefighting operations are subject only to the information and training requirements of the rule.

Identifying exposure: Oregon OSHA says you must use “reasonable diligence” to determine outdoor employees’ exposure to PM2.5. You have the option to measure the level yourself, or to access publicly available data. Authorized resources include the following websites: U.S. Environmental Protection Agency (EPA) AirNow, Oregon Department of Environmental Quality or equivalent source, or the Interagency Wildland Fire Air Quality Response Program. If using these websites or taking a measurement isn’t practical, you may use Oregon’s 5-3-1 Visibility Chart.

Information and training: Beginning August 16, 2021, unless you intend to suspend operations before employees are exposed to a workplace AQI of 101 or higher, you must train employees who may be exposed. Oregon OSHA says it will identify and/or create training materials to help employers meet the portions of the training requirements that cover general education, specifically: (1) symptoms of wildfire smoke exposure; (2) potential health effects of wildfire smoke, including increased risk for sensitive groups; (3) the definition of sensitive groups according to the rule; (4) employees’ right to report health issues and obtain medical treatment related to wildfire smoke exposure without fear of retaliation; (5) how to obtain the current and forecasted air concentration of PM2.5 and the equivalent AQI level; and (6) the importance, limitations, and benefits of using a filtering facepiece respirator, and how to properly put it on. The remaining portions of the training requirements are specific to each employer’s operations, so you’ll need to develop your own training on the following: (1) the procedures supervisors must follow (including emergency response procedures) if an employee shows severe symptoms of wildfire smoke exposure; (2) for any employees designated to operate air quality monitoring devices, instructions on how to operate and interpret them; (3) your methods to protect employees from wildfire smoke; and (4) your communication system for wildfire smoke hazards.

System to communicate hazards: Before employees are exposed to a workplace AQI of 101 or higher, you must develop and implement a system to communicate wildfire smoke hazards. The system must include notifying workers when the AQI reaches 101 or higher, 201 or higher, or 501 or higher, and when the AQI decreases to below levels requiring protective measures. Your system must also enable and encourage employees to inform you when air quality improves or worsens and when they experience or observe severe health symptoms that may be the result of wildfire smoke exposure.

Exposure controls when AQI is 101 or higher: You must maintain a sufficient number of free NIOSH-approved respirators in appropriate sizes so employees may request them for voluntary use to protect themselves from PM2.5. (NIOSH is the National Institute for Occupational Safety and Health.) Keep in mind that when you allow workers to use a tight-fitting respirator for voluntary use, you must provide a special disclosure and ensure that the employee is medically able to use the respirator and that the respirator is properly cleaned, stored, and maintained. See our Model Form, Respirators: Requirements for Voluntary Use.
 
Exposure controls when AQI is 201 or higher: You must use engineering or administrative controls to reduce employees’ exposure to an AQI of less than 201 whenever feasible. If, even after applying engineering and administrative controls, the AQI is still 201 or higher, you must ensure that employees wear NIOSH-approved respirators. However, you’re allowed during the 2021 wildfire season to instead provide KN95 filtering facepiece respirators that were previously approved under the Food and Drug Administration (FDA)’s Emergency Use Authorization. (Note: The FDA temporarily approved a number of KN95s since NIOSH-approved N95s were in short supply due to the COVID-19 (coronavirus) pandemic, but the FDA revoked that approval as of July 6, 2021.) To the extent that employees use filtering facepiece respirators exclusively to protect against wildfire smoke and you follow the procedures in the Appendix of the new rule, you don’t have to implement a full respiratory protection program.

Exposure controls when AQI is 501 or higher: If, even after applying engineering and administrative controls, the AQI is still 501 or higher, you must ensure that employees wear NIOSH-approved respirators. (There is no exception allowing the temporary use of KN95s at this exposure level.) You must also implement a full respiratory protection program, in compliance with federal regulations at 29 CFR 1910.134.

Tips: We’ll be updating our Model Policy, Wildfire Smoke Program, to incorporate the new Oregon requirements. Oregon OSHA hasn’t yet updated their webpage on wildfire smoke to address the new regulations, although they offer links to other resources at the end of their August 2, 2021, press release on the new rules. The agency says they’re aiming to provide links to resources that will meet the new general training requirements by August 6, 2021. Review the new rule, get your procedures in place by August 9, and finalize your training by August 16. Also, keep in mind that wildfire smoke and hot weather may go hand in hand. See our recent Alert on Oregon’s new rules to address heat illness. Contact your Vigilant safety professional with any questions on how to implement any of these new workplace safety rules.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

Comments