HOLY SMOKES! THE IMPORTANCE OF PROTECTING AGRICULTURAL EMPLOYEES FROM WILDFIRES
As the smoke dissipates from the recent tragic Southern California wildfires, this seems an opportune time to remind employers of their obligations to protect their employees from the effects of harmful wildfires. Some of these wildfires reached prime agricultural areas, prompting employers to have to consider the conditions that their workers might have to face outdoors. According to Cal/OSHA:
Wildfire smoke and cleanup presents hazards that employers and workers in affected regions must understand. Smoke from wildfires contains chemicals, gases and fine particles that can harm health. Hazards continue even after fires have been extinguished and cleanup work begins. Proper protective equipment and training is required for worker safety in wildfire regions.
Power outages can also present electrical and other hazards for workers. Proper installation and use of generators can prevent electrocution hazards. Workers must also be aware of the potential of electrocution or being injured by moving parts of machinery and other equipment when power is restored. Workers can also face health hazards from power outages in unventilated areas when ventilation systems are not working.
Let’s take a closer look at the requirements:
Cal/OSHA’s “Protection from Wildfire Smoke standard.” Title 8, section 5141.1 of the California Code of Regulations lays out employer obligations in these types of situations to safeguard employees exposed to wildfire smoke.
Let’s take a closer look at the requirements:
- Scope. Section 5141.1 applies to workplaces where:
- The current Air Quality Index (current AQI) for PM2.5 is 151 or greater, regardless of the AQI for other pollutants; and
- The employer should reasonably anticipate that employees may be exposed to wildfire smoke.
- The following workplaces and operations are exempt from this section:
- Enclosed buildings or structures in which the air is filtered by a mechanical ventilation system and the employer ensures that windows, doors, bays, and other openings are kept closed, except when it is necessary to open doors to enter or exit.
- Enclosed vehicles in which the air is filtered by a cabin air filter and the employer ensures that windows, doors, and other openings are kept closed, except when it is necessary to open doors to enter or exit the vehicle.
- The employer demonstrates that the concentration of PM2.5 in the air does not exceed a concentration that corresponds to a current AQI of 151 or greater by measuring PM2.5 levels at the worksite in accordance with Appendix A.
- Employees exposed to a current AQI for PM2.5 of 151 or greater for a total of one hour or less during a shift.
- Firefighters engaged in wildland firefighting.
- Identification of harmful exposures. Employers shall determine employee exposure to PM2.5 for worksites covered by this section at the start of each shift and periodically thereafter, as needed to protect the health of employees, by any of the following methods:
- Check AQI forecasts and the current AQI for PM2.5 from any of the following websites: U.S. EPA AirNow, the Interagency Wildland Fire Air Quality Response Program, the U.S Forest Service, the California Air Resources Board, the local air pollution control district, or the local air quality management district; or
Obtain AQI forecasts and the current AQI for PM2.5 directly from the U.S. EPA, the Interagency Wildland Fire Air Quality Response Program, the U.S Forest Service, the California Air Resources Board, the local air pollution control district, or the local air quality management district by telephone, email, text, or other effective method; or
- Measure PM2.5 levels at the worksite and convert the PM2.5 levels to the corresponding AQI in accordance with Appendix A.
- Communication. Employers shall establish and implement a system for communicating wildfire smoke hazards in a language and manner readily understandable by employees, including provisions designed to encourage employees to inform the employer of wildfire smoke hazards at the worksite without fear of reprisal. The system shall include effective procedures for:
- Informing employees of:
- The current AQI for PM2.5 as identified in subsection (c); and
- Protective measures available to employees to reduce their wildfire smoke exposures.
- Encouraging employees to inform the employer if any of the following occurs:
- Worsening air quality.
- Adverse symptoms that may be the result of wildfire smoke exposure such as asthma attacks, difficulty breathing, and chest pain.
- Training and instruction. Employers shall provide employees with effective training and instruction in a language and manner readily understandable by employees.
- Control of harmful exposures.
- Engineering Controls. The employer shall reduce employee exposure to PM2.5 to less than a current AQI of 151 by engineering controls whenever feasible.
- Administrative Controls. Whenever engineering controls are not feasible or do not reduce employee exposures to PM2.5 to less than a current AQI of 151, the employer shall implement administrative controls.
- Control by Respiratory Protective Equipment.
- Where the current AQI for PM2.5 is equal to or greater than 151, but does not exceed 500, the employer shall provide a sufficient number of respirators to all employees for voluntary use.
- Where the current AQI for PM2.5 exceeds 500, respirator use is required.
Important laws enforced by the Labor Commissioner’s Office pertaining to wildfires.
- Rights of workers in emergency conditions.
- It is illegal for employers to require workers to report to or prevent workers from leaving an affected work area if they reasonably believe it is unsafe. Employers cannot prevent workers from using their phones to access emergency assistance, assess the safety of a situation, or to confirm the safety of others. These protections continue until the emergency condition ends. Some workers are exempt, including first responders and disaster service workers.
- Labor Code section 1139 does not require time off to be paid, although employees may be able to use available vacation or other paid leave under their employer’s regular policies or practices. Notwithstanding, Labor Code section 246.5 provides that “agricultural employees,” as defined in Labor Code section 9110, who work outside and are entitled to paid sick days can use paid sick leave “to avoid smoke, heat, or flooding conditions created by a local or state emergency, including, but not limited to, when the employee’s worksite is closed due to the smoke, heat, or flooding conditions.”
- Avoiding hazardous conditions like wildfire smoke might also constitute “care” of an existing health condition or “preventative care” under Labor Code section 246.5, entitling employees to use paid sick leave. Workers may also be able to use CA State Disability Insurance to care for themselves or a family member.
- If an employee is discharged, discriminated against, retaliated against, or otherwise subjected to adverse action for exercising their rights under the Labor Code, they can file a retaliation complaint with the Labor Commissioner.
- Requiring employees to work during mandatory evacuation orders
- It is unlawful to direct an employee to enter or remain in an area subject to mandatory evacuation due to fires.
- Requiring employees to work in areas under mandatory evacuation orders may violate the Government and Penal Codes, in addition to the Labor Code. Labor Code section 1102.5 protects employees from retaliation for refusing to participate in activity that would result in violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Labor Code section 6311 also protects employees for refusing to perform work that would violate the Labor Code, including Labor Code section 6400, any occupational safety or health standard, or any safety order of the division or standards board, if the violation would create a real and apparent hazard to employees.
- Relatedly, Labor Code section 6311.5 prohibits a person from willfully and knowingly directing employees to remain in or enter areas closed due to a menace to the public health or safety created by a calamity including a flood, storm, fire, earthquake, explosion, accident, or other disaster as set forth in Penal Code section 409.5, after receiving notice to evacuate or leave, with some exceptions. If employees are discharged, discriminated against, retaliated against, or otherwise subjected to adverse action for exercising their rights under the Labor Code, they can file a retaliation complaint with the Labor Commissioner.
Helpful Resources. Employers and workers should review the following pages with information and resources on protecting workers exposed to smoke from wildfires and worker safety during cleanup:
- Requirements to Protect Workers Exposed to Wildfire Smoke Training Video
- Frequently Asked Questions about Wildfire Hazards
- Frequently Asked Questions on laws enforced by the Labor Commissioner’s Office
- Protecting Outdoor Workers Exposed to Smoke from Wildfires
- Important Update: Protection from Wildfire Smoke
- N95 Mask Commonly Asked Questions
- Using Disposable Respirators (in English and Spanish)
- Voluntary Use of Filtering Facepiece Respirators Training Video
- Protecting Indoor Workplaces from Wildfire Smoke with Building Ventilation Systems
- Protecting Workers Exposed to Wildfire Smoke Fact Sheet - for Employers
- Protecting Workers Exposed to Wildfire Smoke Fact Sheet - for Workers
- Protecting Workers When there are Power Outages
- Worker Safety: Wildfire and Evacuation Zones Infographic
Other Resources
- List of Vendor Who Report Available Supplies of N95 Disposable Respirators - ARCHIVED Worker Protection from Wildfire Smoke Fact Sheet - School Action for Safety and Health (SASH) Program The State of California has set up a website specifically for the recent Southern California wildfires, that may be useful for everyone affected to review.
- List of Vendor Who Report Available Supplies of N95 Disposable Respirators - ARCHIVED
- Worker Protection from Wildfire Smoke Fact Sheet - School Action for Safety and Health (SASH) Program
- The State of California has set up a website specifically for the recent Southern California wildfires, that may be useful for everyone affected to review.
If your workplace has been affected by any of the recent wildfires or if you would like to ensure your workplace is prepared to handle these types of situations, please contact Rosasco Law Group for more information.
