The Washington Department of Labor & Industries has issued a new wildfire smoke emergency rule. Washington is one of a few states to do so, explicitly recognizing wildfire smoke as a potential health hazard to employees. The Washington Department of Labor & Industries began enforcing most provisions of the rule on July 26, 2021.
Under the emergency rule, many employers in Washington1 have obligations to train and protect their employees with regard to the health hazards associated with wildfire smoke. With such regulations being issued on the eve of a potentially catastrophic wildfire season, Washington employers must immediately plan for compliance with their obligations.
Washington's Wildfire Smoke Emergency Rule
The requirements under Washington's wildfire rules are triggered by the current Air Quality Index for PM2.5,2 which measures the concentration of wildfire smoke particles in the air.
Both outdoor and indoor operations are included within the regulation's scope, although employees exposed to AQI of 69 or greater3 for an hour or less during a shift are exempt, as are employees in enclosed indoor operations or enclosed vehicles with cabin air filters, so long as the employer ensures that windows, doors, and other openings are kept closed (except for necessary ingress and egress).
Employers are required to determine employee exposure to PM2.5 at the start of each shift and periodically thereafter as needed to protect the health of employees.4 Employer obligations under Washington's wildfire regulation fall into four categories: training, exposure response, communication, and exposure control. Employer training and exposure response obligations are triggered when the AQI reaches 69 or greater, while communication and exposure control obligations are triggered by an AQI of 151 or greater.
Importantly, the regulations also require employers to include wildfire smoke procedures in their written accident prevention program. At a minimum, the written program must include the information contained in Appendix B.
- Employers are required to provide their employees with training regarding wildfire smoke before work that exposes the worker to an AQI of 69 or greater, and at least annually thereafter. Employers should note that an AQI of 69 is considered "moderate" by the EPA and may occur even in the absence of nearby wildfires.5
- The specific contours of required training are located in the Washington wildfire regulations Appendix B, and include the health effects of wildfire smoke, especially to "Sensitive Groups,"6 the right to obtain medical treatment without fear of reprisal, how to obtain the current AQI, the requirements of Washington's wildfire regulations, and the employer's methods to protect employees from wildfire smoke (including the use of respirators).
In addition to the information in Appendix B, supervisors must also receive training on how to implement the applicable provisions in Washington's wildfire regulations; procedures to follow if an employee exhibits adverse symptoms to wildfire smoke exposure, including appropriate emergency response procedures; and procedures for moving or transporting employees to an emergency medical service provider if necessary. This training must be received by supervisors prior to supervising employees performing work that exposes employees to AQIs of 69 or more.
Exposure Symptom Response
- Employers are required to monitor employees displaying adverse symptoms of wildfire smoke exposure and to determine whether medical attention is necessary. Employers must allow employees who show signs of injury or illness due to wildfire smoke to seek medical treatment, and may not punish employees for seeking such treatment. Employers must also have effective provisions for prompt medical treatment of employees in the event of serious injury or illness caused by wildfire smoke exposure.
- At an AQI of 151 or greater, employers must establish and implement a system that informs employees about current AQI levels and protective measures available to employees to reduce their wildfire smoke exposures.
- Employers must also encourage employees to let employers know if air quality worsens or if they are experiencing adverse symptoms that may be a result of wildfire smoke (such as asthma attacks, difficulty breathing, and chest pain).
Employers are encouraged (but not required) to implement exposure controls when the AQI is 69 or higher. At an AQI of 151 or higher, employers are required to implement exposure controls whenever feasible. Exposure controls include:
- Providing an enclosed workspace where the air is adequately filtered, providing portable HEPA filters in enclosed areas, relocating work to a location with a lower AQI, changing work schedules so that work is performed at times when the AQI is lower, reducing work intensity, and providing additional rest periods.
- Employers must provide NIOSH-approved respirators that effectively protect the wearers from inhalation of PM2.5, such as N95 respirators, for all employees for voluntary use. Employers must also encourage employees to use such respirators.8
- Filtering facepiece respirators used on a voluntary basis are not subject to respirator fit testing and medical evaluations typically required under WAC-296-842 Safety Standards for Respirators. Likewise, employers are to provide respirator training outlined in the Washington wildfire regulations Appendix B—instead of Table 2 of WAC 296-842—when respirators are used voluntarily.
1 The new wildfire smoke emergency rule applies to workplaces where an employer should reasonably anticipate that employees may be exposed to wildfire smoke. However, if the employer is able to implement certain engineering controls, such as keeping windows, doors and other exterior openings closed; or where employees are exposed to an AQI of 69 for a total of one hour or less during a shift, they may be exempt. In addition, firefighters engaged in wildland firefighting are exempt. A complete list of exemptions can be found at WAC 296-62-08510.
2 Solid particles and liquid droplets suspended in air, known as particulate matter, with an aerodynamic diameter of 2.5 micrometers or smaller. Measured in micrograms per cubic meter (µg/m3).
3 Employers may also use the current Washington Air Quality Advisory ("WAQA"), used by the Washington State Department of Ecology. Employer obligations are triggered by an AQI of 69 or a WAQA of 101. For purposes of this Advisory, we will refer to the AQI.
4 L&I specifically endorses employers determining the current AQI, and thus the regulation's applicability, by checking websites hosted by the following entities: U.S. EPA AirNow, the EPA AirNow mobile app, the U.S. Forest Service AirFire website, EPA EnviroFlash website, the Local Clean Air Agency website, the Washington Air Monitoring Network website, the AirQualityWA mobile app, or the Washington Smoke Information website. Employers can also obtain PM2.5 forecasts directly from various State and federal agencies by telephone, email, or text, or employers can also measure PM2.5 levels at their worksites as provided by Appendix A to Washington's wildfire regulation.
5 Env't Prot. Agency, AQI Basics, AirNow (July 20, 2021).
6 L&I's examples of Sensitive Groups includes, but is not limited to, those who smoke, people recovering from COVID—19, children under 18 and adults over 65 years old, pregnant women, people with diabetes, and people with "other medical or health conditions which can be exacerbated by exposure to wildfire smoke as determined by a physician."
7 In emergencies, including rescue and evacuation, engineering and administrative controls are not required. Emergencies include utilities, communications, and medical operations, when such operations are directly aiding firefighting or emergency response.
8 During the 2021 wildfire season, employers may instead provide KN95 respirators.