Sweltering Heat and Suffocating Smoke in PNW: Oregon OSHA and Washington L&I Issue Heat Exposure and Wildfire Smoke Rules

By: Patrick D. Joyce, Adam R. Young, Kira J. Johal, Hoorya R. Ahmad, and Ben Briggs

Seyfarth Synopsis: With 2021’s record-breaking temperatures and diminished air quality from wildfires in the Pacific Northwest, Oregon OSHA and Washington State Department of Labor & Industries (“L&I”) have released permanent and emergency rules on heat exposure and wildfire smoke in an attempt to increase protection for workers.

Both Oregon and Washington implemented emergency rules in 2021 to address record-breaking heat and smoke conditions. These rules apply not only to employees who work outdoors full time, but also include employees who work outdoors temporarily, such as gas station attendants in Oregon or grocery store cart clerks in both states. These are only two examples of the many job duties that may be impacted by heat or wildfire smoke.

Currently, there is no federal OSHA standard addressing heat illness or wildfire smoke, though the federal OSHA is working on drafting a heat rule, which Seyfarth blogged about here. We also presented a webinar on federal OSHA’s aggressive enforcement on heat illness hazards, which can be found here.

OREGON

Oregon OSHA adopted permanent rules to protect workers in outdoor and indoor environments when the heat index (apparent temperature) equals or exceeds 80 ºF, and from the hazard of wildfire smoke exposures. Additional high heat requirements apply when the heat index reaches 90 ºF. The new heat stress rules took effect June 15, 2022, and the wildfire smoke rules take effect July 1, 2022.

A. Heat Stress

Oregon’s new heat stress rules are the most protective of their kind in the United States, requiring employers to provide access to ventilation or cooling locations, cool water, and to implement training and plans to prevent heat related events. All covered employers will need to abide by these rules.[1]

1. Heat Prevention Program and Training

Prepare a written heat illness prevention program including, at a minimum, the following:

Plan to train employees regarding the hazard of heat illness and how to avoid heat illness.
How to respond to signs and symptoms of dehydration, and how to respond to suspected heat-related illnesses in others.
How the employer plans to provide sufficient cool water.
Plan to allow employees time to consume sufficient water.
Plan to provide employees with shade and a cool space.
Plan to implement work/rest schedule when required (only over 90º F heat index).
Plan to implement heat acclimatization for new employees or when they return from 7 or more days off.

The rules also require employers to document and train supervisors and employees on topics contained in the rule such as:

Signs and symptoms of heat illness
Risk factors for heat illness
Importance of water, rest, and shade

In addition, employers must:

Prepare an acclimatization plan for covered employees.
Prepare an emergency medical plan outlining steps to respond to employee heat illness emergency.
When the heat index reaches or is expected to reach 80 ºF:
- Ensure access to shade (open on three sides or using mechanical ventilation to allow air flow) and;
- Ensure access to at least 32 ounces of cool (less than 77 ºF) water per hour and provide employees the opportunity to actually consume water.

2. Additional High Heat Requirements (Heat Index of 90 ºF or Above)

Ensure regular communication with employees working alone (i.e., gas station attendants) using reliable means (cell phone only permitted if service is reliable).
Implement buddy system, if feasible.
Designate an employee to be the main point of contact to call emergency services, but allow others to do so if necessary.
If a location does not have mechanical ventilation, covered employers must measure the indoor temperature on a regular basis.
Develop work/rest schedules for those exposed to high heat greater than 90º F.

The following workplaces and operations involving incidental exposure are fully exempt from the rules:

Work activities resulting in incidental heat exposure for up to 15 minutes in any hour;
Exposure to heat generated from the work process, such as in bakeries or steel production;
Heat exposure as a result of activities performed by emergency rescue and evacuation services; and
Buildings and structures that have a mechanical ventilation system that keeps the indoor heat index below 80º F.

The following are partially exempt from the rules:

Employees who perform only “rest” or “light” workloads are exempt from the following only when the heat index is below 90ºF:
- Access to shade;
- Provision of cool drinking water;
- Emergency medical plan preparation;
- Acclimatization;
- Heat illness prevention plan;
- Supervisor and employee training and documentation;
- Associated support activities for wildland firefighters are exempt from acclimatization requirements; and
- Employees who work at home are only subject to training requirements.

B. Protection From Wildfire Smoke

Effective July 1, 2022, Oregon employers whose employees are or will be exposed to wildfire smoke must comply with the following to address occupational wildfire smoke exposures:

Actively monitor air quality reports to determine whether employees may be exposed to an Air Quality Index (AQI) greater than 101.
Provide filtering face piece respirators for employees to use once AQI reaches 101.
Provide training, prior to exposure, to employees who may be exposed to an AQI of greater than 101 as part of their job duties. Training must be provided in a language readily understood by the employee and cover topics specified in the new rule.
Similar to Heat Illness, ensure two-way communication to inform outdoor employees of triggers associated with wildfire smoke.
Provide administrative or engineering controls to reduce smoke exposure, such as allowing access to temporary or permanent enclosed spaces with portable HEPA filters or allowing use of personal vehicles with filtered air.
Require the use of filtering face piece respirators when AQI is over 251.
- The rule allows employers to implement a “lite” respiratory protection program that is only in effect when AQI is greater than 251.
- When AQI exceeds 500, employers must ensure that all employees use respirators and must implement a full respiratory protection program.

Exemptions:

The following workplaces and operations are fully exempt from the new wildfire smoke standard:

Enclosed buildings and structures utilizing indoor air filtered by a mechanical ventilation system. The employer must also ensure that windows, doors, bays, and other exterior openings are kept closed, except when it is necessary to briefly open doors to enter or exit.
Enclosed vehicles utilizing air filtered by a properly maintained cabin air filter system, when the windows, doors, and other exterior openings are kept closed, except when it is necessary to briefly open doors to enter or exit.
When the employer predetermines that operations will be suspended to prevent employee exposure to wildfire smoke at an AQI 101 or higher.
Employees working at home.

The following are partially exempt and are only subject to the training and voluntary respiratory protection elements of the Rule:

Wildland firefighting and associated support activities.
Emergency operations that are directly involved in the protection of life or property.
Work activities involving only intermittent employee exposure of less than 15 minutes in an hour to an AQI 101 or greater with a total exposure of less than one hour in a 24-hour period.

C. Businesses Respond to the New Oregon Rules

On June 15, 2022, a coalition of Oregon business groups consisting of the Oregon Manufacturers and Commerce Association, Associated Oregon Loggers Inc., and the Oregon Forest and Industries Council filed a lawsuit in the U.S. District Court for the District of Oregon seeking a temporary restraining order preventing implementation of the new heat and wildfire smoke protection rules pending the court’s consideration of whether to permanently block the rules. The coalition is challenging the new rules on 14th amendment due process grounds as arbitrary and capricious in that they are too vague for employers to be able to achieve compliance. The coalition also argues that Oregon OSHA exceeded its statutory authority with regards to the hazards it may enforce under state law and that OR OSHA does not have authority “to regulate general societal hazards which affect employees in and out of the work environment.”

WASHINGTON

The Washington State Department of Labor & Industries (L&I) adopted emergency rules for heat stress and wildfire smoke, both of which are effective June 15, 2022 until September 29, 2022. The emergency rules supplement existing requirements for employers to respond to outdoor workers experiencing heat-related illness; if a worker becomes ill, they must be relieved from duty, given shade, water, or other means of cooling down, and monitored for further medical attention.

A. Heat Stress

The Heat Stress emergency rules apply to all employers with employees performing work in an outdoor environment of 89 ºF or higher (with a lower threshold of 77 ºF for employees who wear double-layer woven clothes).

Two important notes regarding Washington’s emergency rule: first, it only applies to outdoor worksites and not indoors, which is different from Oregon. Second, Washington does not use heat index as the trigger - all temperatures are those found on a thermometer without taking into account sun exposure, humidity, wind, or other factors.

1. Prevention of Heat Events. Employers in construction, agricultural, or industries in which employees perform work outdoors for more than 15 minutes in a 1-hour period must:

Encourage employees to regularly consume cool water and take preventative cool-down rest periods when they feel the need to do so to protect themselves from overheating.
Employees must be paid except if a break is taken during a meal period.
Ensure cool drinking water is available in sufficient quantities for employees to have 32 ounces per hour and employees must be provided sufficient time to drink 32 ounces of water per hour.
If an employee shows signs or symptoms of heat illness that do not improve during the rest period, additional measures must be taken as set out in the rule to get the employee medical attention.
Provide employees sufficient access to shade at all times in a large and open area or well ventilated area with active ventilation.
- The area cannot be adjacent to a radiant heat source such as a concrete building or parking lot. Employers may provide other means to reduce body temperature in lieu of shade such as a cooling vest or air-conditioned trailers.
Provide adequate training before exposure to heat.
- Additional supervisor training on proper response to a heat illness emergency and familiarization with emergency procedures is required.
Employers are encouraged, but not required below 89 ºF, to implement heat acclimatization strategies.

2. Additional High Heat Requirements (89 ºF or Above)

Employers must provide mandatory cool-down rest periods of at least 10 minutes every 2 hours when temperatures are 89 ºF or above. The rest breaks may be provided concurrently with other required meal or rest periods and must be paid unless taken during a meal period.
Employers must ensure effective communication with and observation of workers who work outdoors such as regular check-in by radio or cell phone, implementing a buddy system, or other means.

B. Wildfire Smoke

Washington’s emergency wildfire smoke protection rule is effective from June 15, 2022 to September 29, 2022. Washington employers with workers who are at risk of exposure to wildfire smoke on the job of an AQI of 69 or more must ensure the following:

Employers must determine exposure to AQI prior to an employee’s shift and “periodically thereafter, as needed.”
Provide employees with notifications at the following thresholds:
- When 2 consecutive hourly AQI measurements exceed AQI 69; and
- When 1 hourly AQI measurement exceeds AQI 101; and
- When AQI exceeds 500.
Provide information to employees as to the protective measures available.
Encourage employees to report worsening air quality, symptoms of wildfire smoke exposure, and lack of available protective measures.
Wildfire Smoke Response Plan:
- Employers must develop a written plan to incorporate into their WA APP that must include:
  - Information on the health effects of wildfire smoke;
  - Information on employee rights to obtain medical treatment without fear of reprisal;
  - How employees can obtain the current AQI;
  - The requirements of the wildfire smoke emergency rule;
  - The employer’s response plan for wildfire smoke including the employer’s methods to protect employees from wildfire smoke;
  - The importance, limitations, and benefits of using a properly fitted respirator when exposed to wildfire smoke; and
  - How to properly put on, use, and maintain the respirators provided by the employer.
- Provide initial and annual training on the topics listed in the rule:
  - Monitoring of employees showing adverse effects from wildfire smoke and, if necessary, ensure they are provided with prompt emergency medical treatment.
  - Exposure controls (not including respiratory protection) above AQI 69 and required above AQI 101, such as:
    - Providing access to enclosed buildings or vehicles;
    - HEPA filters;
    - Changing work schedules to times with lower AQI;
    - Reducing work intensity; or
    - Providing additional rest periods.
  - Availability of respirators for employees for AQI above 69.
    - If the AQI is above 101, employers must provide exposed employees with respirators such as N95s and must encourage employees to utilize them after providing them with a copy of the Emergency Rule.
    - If AQI is above 500, employers must implement a complete respiratory protection program in accordance with the L&I respiratory protection rule and must require respirator use.
  - Provide additional training to supervisors regarding implementing the plan, what to do if an employee exhibits symptoms of smoke exposure, and the procedures to transport employees to an emergency medical service provider.

Exemptions

The following Washington workplaces and operations are exempt:

Enclosed buildings or structures in which the employer ensures that windows, doors, bays, and other exterior openings are kept closed, except when it is necessary to briefly open doors to enter and exit.
Enclosed vehicles in which the air is filtered by a properly maintained cabin air filter and the employer ensures that windows, doors, and other openings are kept closed except when it is necessary to briefly open doors to enter or exit.
Employees exposed to an AQI of 69 or more for a total of one hour or less during a 24-hour period.
Work within the scope of chapter 296-305 WAC, Safety standards for firefighters.

Both the Oregon permanent rules and the Washington emergency rules for heat illness prevention and wildfire smoke protection contain a multitude of requirements that, if missed, could expose employees to potential hazards and the employer to liability. Seyfarth’s Workplace Safety and Environmental team members are well-versed in the requirements of each rule and are available to help implement or revise programs to comply.

[1] Under Oregon OSHA’s broad jurisdiction, you are not a “covered” employer only if you fall under these limited exemptions: independent contractors, sole proprietors, and partnerships that have no workers’ compensation insurance coverage and no employees; corporations that have an owner as the sole employee and have no workers’ compensation insurance coverage; and corporate family farms that employ only family members.