Vigilant Blog

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

Jun 03, 2022

Washington Alert: Emergency regulations for outdoor heat exposure and wildfire smoke released

Safety and Health 

On June 1, 2022, emergency regulations for outdoor heat exposure and wildfire smoke were released. This Alert summarizes both sets of regulations, which take effect on June 15, 2022.

WASHINGTON: L&I issues emergency rules for outdoor heat
Washington’s Department of Labor and Industries (L&I) has released emergency requirements to protect workers from outdoor heat exposure. Washington’s existing permanent heat exposure rules are in effect seasonally every year from May 1 through September 30. The new emergency requirements temporarily expand the permanent rules, and will take effect starting June 15, 2022, until September 29, 2022. (Note: L&I is currently engaging in even more rulemaking, which will create permanent changes to the heat illness rules, so we’ll notify our members of any future developments on that front. It will be much easier for employers to keep track of these obligations when we all have only one set of heat illness rules to pay attention to! In the meantime, though, we’re stuck with both the permanent rules and the emergency rules.)

Washington’s permanent outdoor heat exposure rules apply to all employers with employees working in outdoor environments. The permanent seasonal regulations for general industry are found at WAC 296-62-095 to 296-62-09560 and for agriculture at WAC 296-307-097 to 296-307-09760. The requirements of the permanent outdoor heat exposure rules apply when employees are exposed to outdoor heat at or above the following temperatures:

  • 52 degrees Fahrenheit (°F) for outdoor workers wearing nonbreathable clothing (including vapor barrier clothing, or personal protective equipment (PPE) like chemical resistant suits);
  • 77°F for outdoor workers wearing double-layer woven clothing (including coveralls, jackets, and sweatshirts); and
  • 89°F for workers wearing all other clothing.

The additional emergency requirements modify both the general industry and agriculture rules by amending sections and creating new sections. Here is a summary of the key temporary changes and additions to the permanent rules:

Definitions: The additional emergency requirements expand certain definitions in the permanent rules and create new ones.

  • Acclimatization: The new requirements add that acclimatization means the gradual temporary adaptation to working in heat that happens over a period of 7 to 14 days, with a substantial amount of the adaptation happening in days 1 through 4 or 5. They also add that acclimatization is lost after a week of not working in the heat.
  • Buddy system: The new requirements specify that a buddy system means a system where people are paired up into groups so each employee can be observed by at least one other person in the group to monitor for and report signs and symptoms of heat illness.
  • Drinking water: The new requirements add “suitably cool” to the definition of drinking water.
  • Shade: The new requirements add a definition for shade, which says that shade is a blockage of direct sunlight. An indicator that shade is sufficient is when objects don’t cast a shadow in the area of blocked sun. Shade is inadequate when heat in the shade area defeats shade’s purpose of allowing the body to cool (like a car sitting in the sun with no air conditioning running). Shade can be provided naturally or artificially, and can’t expose employees to unsafe or unhealthy conditions or discourage use.

Employer and employee responsibility: The emergency requirements add that employers must allow and encourage employees to take preventative cool-down rest breaks, whenever they feel they need to prevent overheating, by using sufficient means of cooling down their body temperature (such as using shade or an equally effective cool-down method). Employees must be paid during this break unless it is taken during a meal period.

Access to shade: Employers must provide one or more shade areas whenever employees are present. The shade areas must be open to air or have ventilation or cooling and can’t be adjoined to a radiant heat source (like machinery). The shade areas must also be as close as practicable to the work area. You need to provide enough shade to accommodate the number of employees resting or taking a meal period so they can sit fully shaded in a normal posture. You can use another means of reducing body temperature if you can show it is at least as effective as shade for cooling (which might include misting stations, cooling vests, or areas with air-conditioning).

Acclimatization: The emergency requirements encourage employers to closely observe for signs and symptoms of heat illness in new employees and those returning to work from prolonged absences. The monitoring should occur by implementing one or more of the following monitoring methods for a period of 14 days: (1) regular communication with employees who are working alone (such as using a radio or cell phone), (2) a mandatory buddy system, or (3) another effective means of observing employees.

Requirements when temperatures equal or exceed 89°F: You must make sure employees take a mandatory cool-down rest break of at least 10 minutes every 2 hours. This break can be concurrent with meal periods and must be paid unless taken during a meal period. You are also required to ensure effective communication so that employees and their supervisor can contact each other whenever they need to. Electronic devices such as cell phones can only be used for this requirement if cell reception is reliable. You must also effectively observe employees for heat illness signs and symptoms by doing one or more of the following: (1) regular communication with employees who are working alone (such as using a radio or cell phone), (2) a mandatory buddy system, or (3) another effective means of observing employees.

Training: The emergency requirements add the following topics to the permanent rules’ existing annual training requirements:

  • The importance of taking preventative cool-down rest breaks whenever employees feel the need to do so to prevent overheating
  • The mandatory cool-down rest breaks that are required when the temperature is at least 89°F
  • Your procedures for providing shade or other sufficient ways of cooling down body temperature (including where this will be provided and how employees can access it)
  • Your procedures for ensuring that you will effectively observe for and communicate with employees regarding heat illness signs and symptoms.

Tips: In the text of the emergency requirements, the new sections are marked “new section,” and the sections that were amended or changed are marked “amendatory section” with underlined portions showing what was amended. Some parts of the existing rules haven’t been changed by the emergency requirements, so although we’ve summarized the key additions, it’s important that you review the new requirements carefully in tandem with the portions of the permanent rules that weren’t changed, to ensure you’re aware of all the requirements and steps you need to take to comply.

Remember that the emergency requirements take effect on June 15 and remain in effect through September 29, while the permanent rule went into effect on May 1 and will remain in effect until September 30. For additional information about heat exposure, see L&I’s “Be Heat Smart” webpage. If you have any questions about heat illness prevention or compliance with the emergency requirements, contact your Vigilant safety professional.
WASHINGTON: Emergency wildfire smoke rules effective June 15, 2022
Washington’s Department of Labor and Industries (L&I) issued emergency regulations on June 1, 2022, requiring employers to protect workers from wildfire smoke. The rules are effective June 15, 2022, through September 29, 2022, and apply to all outdoor workers who are exposed to wildfire smoke where the ambient air concentration for fine particulate matter equals or exceeds an Air Quality Index (AQI) value of 69. Here’s what you need to know.

Action levels: Washington’s rule sets forth 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 69 or higher (PM2.5 concentration of 20.5 micrograms per cubic meter). The second action level occurs when the AQI is 101 or higher (PM2.5 concentration of 35.5 micrograms per cubic meter). The third and final action level is beyond the AQI (i.e., above 500) (equivalent of PM2.5 concentration of 555.0 micrograms per cubic meter).

Exemptions: The rules don’t apply to: (1) enclosed buildings in which you ensure that all exterior openings are kept closed except when people need to enter or exit; (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; (3) employees exposed to an AQI of 69 or higher for one hour or less during a shift; or (4) wildland firefighting crews (because they're subject to different regulations).

Identifying Exposure: Before each shift and periodically thereafter (the rule doesn't specify how often, but says “as needed”), you must determine employees’ exposure to PM2.5. You have the option to measure the level yourself, or to access publicly available data. The rule offers several ideas for locating data, including websites (U.S. Environmental Protection Agency (EPA) AirNow, EPA, U.S. Forest Service AirFire, Washington Air Monitoring Network, Washington Smoke Information and local clean air agency websites—see links to regional agencies here) and two free mobile apps (EPA AirNow and AirQualityWA).

Hazard Communication: For worksites covered by the rule, you must have a system to notify affected employees of wildfire smoke hazards. The system must inform employees when the AQI is 69 or higher (following two consecutive readings), 101 or higher, and beyond the AQI. You must notify employees of available protective measures to reduce their exposure. Your system must also encourage employees to inform you of worsening air quality, issues with availability of appropriate exposure control measures and respiratory protection, and any symptoms of wildfire smoke exposure such as asthma attacks, difficulty breathing, or chest pain. You must include wildfire smoke in your written accident prevention program, which must at a minimum include seven elements (listed below in the section on “information and training for workers”). This information is explained in much greater detail in the regulations at WAC 296-62-08590 (also known as Appendix B in the wildfire smoke regulations).

Information and training for workers: You must provide wildfire smoke training to all employees prior to an exposure of a workplace AQI of 69 or higher. Employees must be trained annually prior to wildfire smoke exposure and in a language that is readily understood. At a minimum, the training must include the information contained in WAC 296-62-08590 (Appendix B). The training must cover:

  • The health effects of wildfire smoke;
  • Employees’ right to obtain medical treatment without fear of reprisal;
  • How employees can obtain the current AQI (PM2.5) for their work location;
  • The requirements of WAC 296-62-085 (wildfire smoke);
  • Your response plan for wildfire smoke, including methods to protect employees from wildfire smoke;
  • The importance, benefits, and limitations of using a properly fitted respirator (which you must provide for free); and
  • How to properly put on, use, and maintain the respirators when exposed to wildfire smoke.

Information and training for supervisors: You must ensure that supervisors receive special training in addition to the general training for all workers. You must provide the special training before they supervise employees who are exposed to an AQI or 69 or higher. You must train supervisors on procedures for: (1) implementing the wildfire smoke rules (WAC 296-62-085); (2) taking action if an employee shows adverse symptoms of wildfire smoke exposure, including emergency response procedures; and (3) moving or transporting employees to an emergency medical services provider, if needed.

Responding to symptoms: If employees display adverse symptoms of wildfire smoke exposure, you must monitor them to determine whether they need medical attention. You must allow anyone showing signs of injury or illness due to wildfire smoke exposure to seek medical treatment without any negative employment consequences. You must also establish procedures ahead of time to ensure prompt medical treatment in the event of serious injury or illness caused by wildfire smoke exposure.

Exposure controls: When the AQI is 69 or higher, L&I encourages you to implement exposure controls. When the AQI is 101 or higher, L&I requires you to implement exposure controls whenever feasible. Examples include providing access to enclosed buildings or vehicles where the air is filtered; providing portable high efficiency particulate air (HEPA) filters in enclosed areas; relocating work; changing work schedules; reducing work intensity; and providing additional rest periods.

Respiratory Protection: When the AQI is 69 or higher, L&I encourages you to provide respirators at no cost to employees upon request, for voluntary use, or to allow employees voluntarily to provide and wear their own respirators. Keep in mind that for this type of voluntary use, you must provide a Washington-specific notice entitled “Advisory Information for Employees Who Voluntarily Use Respirators” (Table 2 from WAC 296-842-11005). When the AQI is 101 or higher, L&I requires you to provide free respirators and encourage employees to use respirators. You may either distribute the respirators directly to each employee or maintain a sufficient supply for all employees at each work location. If an employee voluntarily agrees to use a respirator due to wildfire smoke at this AQI level, you must provide WAC 296-62-08590 (Appendix B, “Protection from wildfire smoke information to be provided to employees”) instead of the general voluntary use notice described above. The respirators must be NIOSH-approved devices, such as N95 filtering facepiece respirators. You must ensure any respirators in use are cleaned, stored, maintained, and replaced so they don't present a health hazard themselves. You must also replace any respirators that aren’t functioning properly and prohibit their use. When it reaches beyond the AQI, you must establish a complete respiratory protection program in accordance with WAC Chapter 296-842. You must provide one of the following respirators equipped with high efficiency particulate air filters: (1) loose-fitting powered air purifying respirator; (2) full-facepiece air purifying respirator; (3) full-facepiece powered air purifying respirator; or (4) other respirators that are at least as effective.

Tips: See our Model Policy, Wildfire Smoke Program, which has been updated to incorporate these emergency Washington wildfire smoke regulations. L&I has updated its webpage on wildfire smoke to address the recent emergency rules. If you have questions or need assistance developing your program, contact your Vigilant safety professional.

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.