While Oregon has enjoyed a relatively mild spring, summer is right around the corner—and with it comes the risks of extreme heat and wildfires. Although Oregon Occupational Safety and Health Administration (Oregon OSHA) previously issued guidance for employers to protect their employees from these risks, the agency recently adopted formal rules related to exposure to heat and wildfire smoke. The rules related to exposure to heat become effective on June 15, 2022, and the rules related to exposure to wildfire smoke become effective on July 1, 2022. Employers should familiarize themselves with the new rules and develop policies for their workplaces in order to comply. Below you will find a brief summary of the new requirements as well as links to the newly adopted rules.
Heat Illness Prevention
The heat exposure rules can be found here and apply “whenever an employee performs work activities, whether in indoor or outdoor environments, when the heat index equals or exceeds 80 degrees Fahrenheit.” It is important to point out that these rules do not apply exclusively to outdoor work environments and may also apply to certain indoor work environments. The rules also include a list of workplaces that are either fully or partially exempt from these requirement. Exempt workplaces include, but are not limited to, incidental exposures to heat, where heat is generated due to work processes (e.g., bakeries), emergency operations, and workplaces with ventilation systems capable of maintaining temperatures below 80 degrees Fahrenheit. A full list of exemptions is in the rules’ Section 1(a) and (b).
Where employees will be exposed to a heat index over 80 degrees Fahrenheit (and the workplace is not exempt), the rules have a number of requirements, including but not limited to providing access to shade, supplying drinking water, developing “high heat practices,” a heat illness prevention plan, an acclimatization plan, and an emergency medical plan, and providing annual training to supervisors and employees regarding heat illness prevention.
Where employees will be exposed to a head index over 90 degrees Fahrenheit, employers must implement their “high heat practices.” In this situation, an employer must, in addition to the requirements above, implement certain processes to be able to promptly identify any employee suspected of experiencing heat-related illness, provide means for employees to contact supervisors at any time, designate and equip at least one employee to call for emergency medical services, directly measure temperature and humidity in indoor workspaces without mechanical ventilation, and develop and implement a heat illness prevention rest break schedule. A simple version of a sample rest break schedule provided by Oregon OSHA is below.
This rest break schedule is only one of the allowable options for employers to meet the rest break requirement. Employers should closely review this section of the rule and choose a rest break schedule that considers their employees’ specific work conditions. It should be noted that the heat illness prevention rest breaks are considered a “work assignment” unless the rest break coincides with an existing unpaid meal break.
Protection from Wildfire Smoke
The rules addressing employee exposure to wildfire smoke can be found here and apply to employees who are or will be exposed to wildfire smoke where the ambient air concentration for fine particulate matter (PM 2.5) is at or over 35.5 μg/m3, which is an Air Quality Index (AQI) of 101 for PM 2.5.
Like the heat exposure rules, certain workplaces are exempt from the wildfire smoke rules. Exempt workplaces include enclosed buildings in which the air is filtered by a mechanical ventilation system, enclosed vehicles in which the air is filtered by a properly maintained air filter system, and employees working at home. An employer is also exempt from these rules if they predetermine that operations will be halted at AQI of 101 or higher. In addition, workplaces including wildland firefighting, emergency operations, and work operations where employee exposure is only intermittent (less than 15 minutes in an hour with total exposure being less than one hour in a single 24-hour period) are only subject to certain subsections of the rule.
Also, like the heat illness prevention discussed above, the wildfire smoke rules contain detailed requirements and employers are strongly encouraged to review them carefully. In summary, under these rules, employers are required to monitor employee exposure to wildfire smoke when employees are, or are likely to be, exposed to wildfire smoke above the concentration limit. The rules provide four different methods for monitoring, which include checking the average and forecasted AQI value from the Oregon Department of Environmental Quality or directly measuring workplace ambient air concentration for PM 2.5. Non-exempt employers must provide and document annual wildfire smoke training for all employees who may be exposed to an AQI at or above 101 for PM 2.5. The rules also require communication between supervisors and employees regarding wildfire smoke information, including any changes in air quality that would necessitate a change in the level of exposure controls being used at that work location.
Finally, an employer must implement engineering and administrative controls to reduce employee exposures to PM 2.5 to less than 35.5 μg/m3. An employer is exempt from these control requirements only if the employer can demonstrate that such controls are functionally impossible or would prevent the completion of work. An example of appropriate engineering controls is temporarily relocating outdoor workers indoors. Administrative controls may include relocating outdoor workers to another outdoor location with better air quality or changing employee work schedules to a time when better air quality is forecasted.
Whenever employee exposure to PM 2.5 is at or above 35.5 μg/m3, even after implementing appropriate engineering and/or administrative controls, employers must ensure that appropriate National Institute for Occupational Safety & Health-approved filtering facepiece respirators are provided to employees for voluntary use. The respirators must strictly be used for protection against wildfire smoke and must not be used if use of the respirator would expose the wearer to a substantially greater hazard than that of wildfire smoke exposure. It is important to note that voluntary use of filtering facepiece respirators does not subject an employer to Oregon OSHA’s Respiratory Protection Standard.
However, the use of these respirators does become required upon exposure to PM 2.5 at or above 200.9 μg/m3 (AQI 251). Under these circumstances, an employer will be required to comply with either the Wildfire Smoke Respiratory Protection Program or the Respiratory Protection Standard, depending on the level of exposure.
If, after review, you have any questions about the new heat and wildfire smoke rules, please contact Josh Dennis at firstname.lastname@example.org or 503-796-2985, or Nyika Corbett at email@example.com or 503-796-2981.
This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.
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