As Oregon continues to deal with an unprecedented wildfire season and the lingering effects of the state’s air quality, Oregon Occupational Safety and Health (“OSHA”) has released best practices for employers whose employees conduct outdoor work activity. A link to the news release can be found here. To summarize, Oregon OSHA strongly encourages employers to take the following steps to protect employees from persistently unhealthy air quality:
- Closing outdoor work activity when air quality becomes “unhealthy,” or reaches an Air Quality Index (“AQI”) of at least 151 (as of 11:00 a.m. September 15, 2020, Portland’s AQI was 378);
- Allowing workers with underlying health conditions to stay at home;
- Rearranging work schedules, hours, and tasks to enable workers to get relief from smoky outdoor air; and
- Providing N95 masks, where and when appropriate, and informing workers of their proper use and care.
In addition, employers should be mindful of employees living in areas that have been directed to evacuate, and allow them to stay home to help their families with those preparations. Oregon OSHA also points out that the unhealthy air is associated with a higher risk of respiratory infections, which can have serious implications during the COVID-19 pandemic. As such, employers should be even more mindful of the risks of spreading COVID-19 and the increased negative health effects it could have on employees during the wildfire season.
To be clear, Oregon OSHA’s best practices are not requirements based on a regulation or statute. While Oregon OSHA is encouraging employers to enact these best practices during this extraordinary time, you will not find a rule that lays out specifically what an employer must do in this situation.
The lack of an applicable rule or statute, however, does not mean an employer is immune from citation for not taking action to protect employees from unhealthy air. Under the state’s general duty clause (ORS 654.010), an employer has a general duty under the Oregon Safe Employment Act (“OSEA”) to do whatever is “reasonably necessary” to make an employee’s “employment and place of employment safe and healthful.” Therefore, it is highly recommended that employers take steps to mitigate the hazards associated with unhealthy air quality despite the lack of a formal requirement to do so.
Not surprisingly, California has adopted specific requirements related to wildfire smoke and worker exposure to unhealthy air quality as a result. These rules require an employer, among other things, to provide N95 masks to all employees for voluntary use when the AQI is greater than 151. As these fire events become more prevalent in the state, it is likely that Oregon OSHA will adopt a similar rule.
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