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 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.
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.
Prepare a written heat illness prevention program including, at a minimum, the following:
The rules also require employers to document and train supervisors and employees on topics contained in the rule such as:
The following workplaces and operations involving incidental exposure are fully exempt from the rules:
The following are partially exempt from the rules:
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:
The following workplaces and operations are fully exempt from the new wildfire smoke standard:
The following are partially exempt and are only subject to the training and voluntary respiratory protection elements of the Rule:
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."
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.
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:
2. Additional High Heat Requirements (89 ºF or Above)
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:
The following Washington workplaces and operations are exempt:
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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