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As Wildfires Burn in CA, New Law for Some Employers is Proposed 
Sep 1, 2021

As Wildfires Burn in CA, New Law for Some Employers is Proposed 

Topics: Legal Information, OSHA Issues

As wildfire season is well underway, California employers need to be cognizant of the requirements to protect employees who are exposed to the hazards of wildfire smoke.  In particular, Cal/OSHA’s wildfire smoke protection regulation (found here) applies whenever: (1) the current Air Quality Index (“AQI”) for PM2.5  is 151 or greater, and (2) the employer should reasonably anticipate that employees may be exposed to wildfire smoke.  PM2.5 is defined as “Solid particles and liquid droplets suspended in air, known as particulate matter, with an aerodynamic diameter of 2.5 micrometers or smaller.”

In general, Cal/OSHA’s wildfire smoke protection regulation provides greater levels of exposure control – engineering, administrative, and personal protective equipment (PPE) – as the AQI increases.  For instance, when the AQI for PM2.5 is equal to or greater than 151, but does not exceed 500, respirators (such as N95 masks) must be provided for voluntary use.  However, if the AQI exceeds 500, then respirators must be used by all exposed employees, and must also be used in accordance with the respiratory protection standard, which includes proper fit testing and medical examinations, as well as a written respiratory protection plan.  This regulation applies to all workers working outdoors for over one hour each shift when the AQI is at or above 151, (with certain exceptions) and even applies to indoor employees when they do not work in an enclosed building or structure where outside air is mechanically filtered, and all doors, windows and other openings are kept closed except for entering and exiting.  

While the above wildfire smoke protection regulation already applies to agricultural workers, a new proposed law (Assembly Bill 73, known as the Farmworker Wildfire Smoke Protections Act) would increase protections for farmworkers exposed to dangerous levels of wildfire smoke.  The Act would amend the Health and Safety Code to include agricultural workers as “essential workers,” thus allowing them access to the California Department of Public Health’s stockpile of N95 masks.  The Act also requires Cal/OSHA to develop, periodically update, and distribute to employers, training materials in English and Spanish, including pictograms for agricultural employees related to wildfire smoke safety topics.  Wildfire smoke training would also be required to be provided periodically by employers, as opposed to more general training under California’s IIPP requirement, that does not impose any specific periodicity for training.  

Finally, the Act also originally proposed that “wildfire strike teams” would be sent out by Cal/OSHA to investigate agricultural work sites for compliance with safety regulations when air quality standards reach dangerous levels.  However, that proposal was removed from the proposed text last week, when the bill was unanimously passed by the Senate Appropriations Committee.  This is likely a wise decision by our Legislature, given the already heavily burdened Cal/OSHA enforcement branch.  As wildfires continue to be a part of the summer landscape in California, we expect new regulations in this area to increase.  If you have questions about the responsibilities of California employers to protect their employers from wildfire smoke, please do not hesitate to contact the author or your CDF Labor Law attorney.  

About CDF

For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor in Chief

Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
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