November 16, 2019

November 15, 2019

Subscribe to Latest Legal News and Analysis

November 14, 2019

Subscribe to Latest Legal News and Analysis

Cal/OSHA Wildfire Smoke Emergency Regulation Now in Effect

In late July, the California Occupational Safety and Health Standards Board adopted an emergency regulation to protect workers from health hazards arising from wildfire smoke. The regulation became effective July 30, 2019, and will remain in effect through January 28, 2020. 

Modified Regulation

The adopted wildfire smoke regulation is substantially similar to the proposed regulation, which we summarized in May. However, the adopted regulation has eased some requirements for when employers are required to provide respirators to employees.

Under the original version of the proposed rule, any time the Air Quality Index (AQI) for PM2.5 was greater than 300, employers had to provide respirators and employees were required to wear them. Under the adopted version, respirator use is mandatory only when the AQI exceeds 500. However, employers are still required to provide respirators to employees who request them when the AQI is greater than 150, but less than 500. The regulation also requires employers to “encourage employees to use respirators” when the AQI exceeds 150. 

The adopted regulation also includes an additional exemption. Employees who are exposed to an AQI greater than 150 “for a total of one hour or less during a shift,” are exempt from this regulation. Accordingly, employees who are outside only briefly during a work shift are likely exempt. 

Impact of Adopted Regulation

Significant portions of the regulation remain unchanged from what was originally proposed. This means that employers are required to monitor AQI in order to determine employee exposures to PM2.5, establish and implement a system for communicating wildlife smoke hazards, make respirators available to employees when AQI exceeds 150 and an employee requests a respirator and require employees to wear respirators when AQI exceeds 500, and implement an “effective training and instruction” program on wildlife smoke hazards. The adopted regulation includes an appendix detailing the mandatory information that employers must provide employees. For employers that do not usually provide employees with respirators, those employers may now be obligated to have a respiratory protection program. 

While this regulation was adopted on an emergency basis and will expire, the California Division of Occupational Safety and Health (Cal/OSHA) has already scheduled a public advisory meeting for August 27, 2019, to discuss whether this emergency regulation should be made permanent.

© 2019 Beveridge & Diamond PC


About this Author

Jayni A. Lanham, Beveridge Diamond Law firm, Environmental Attorney

Jayni Lanham maintains a general environmental, litigation, and regulatory practice.  Ms. Lanham represents clients in litigation arising under a broad range of federal and state environmental statutes, as well as state common law.  Ms. Lanham manages key aspects of litigation defense, including pre-trial motions practice, complex discovery, and the development of effective technical defenses.

Kaitlyn Shannon, Beveridge Diamond Law Firm, Environmental Enforcement Litigation Attorney

Kaitlyn Shannon focuses her practice on environmental enforcement and litigation, including mass torts. Kaitlyn has experience with the Comprehensive Environmental Response, Compensation and Liability Act, Resource Conservation and Recovery Act, and the National Environmental Policy Act