After receiving over 40 public comments and holding a public meeting on its proposed wildfire smoke emergency regulation, California’s Department of Industrial Relations, Division of Occupational Safety and Health (“DOSH”), has eased some requirements of the proposed rule. (If you would like more information on the proposed regulation, you can check out this previous OSHA Law Blog post). Yet, much of the rule has remained the same.
What Remains the Same
Under the newest version of the proposed rule, the trigger point for when employers must act stays the same. Anytime a workplace has an Air Quality Index (“AQI”) greater than 150 for minute particles, they must adhere to the requirements of the regulations. And despite calls from many industry groups to make the rule applicable only to outdoor workers, DOSH has decided that rule will still apply to indoor workplaces. But like in the original version, the regulation exempts these types of workplaces and operations form the regulation’s requirements:
- operations with enclosed structures “where the air is filtered by a mechanical ventilation system and employee exposure to outdoor or unfiltered air is effectively limited;”
- operations involving enclosed vehicles in which the air is filtered by a cabin air filter;
- operations where the employer demonstrates that the AQI for PM2.5 does not exceed 150; and
- firefighters and emergency response personnel.
What Has Changed
The newest version of the rule raises the AQI level at which employers must make respirators mandatory. In the original version of the rule, that level was an AQI greater than 300. Now, respirator use is mandatory when the AQI is greater than 500. But employers must still provide respirators to employees who request them when the AQI is greater than 150 but less than 501.
Additionally, the revised version of the rule adds another exemption to the regulation. Seemingly addressing employer concerns about employees who spend only a small portion of their workday outside, DOSH has exempted from the regulation employees exposed to an AQI greater than 150 “for a total of one hour or less during a shift.”
Next Steps for DOSH
The newest version of the rule will be reviewed by California’s Occupational Safety and Health Standards Board on July 18, 2019. After approval from the Board, the proposed regulation will be submitted to the Office of Administrative Law (“OAL”) for final approval. OAL then has ten calendar days in which to review the emergency regulation and decide whether to approve. After approval, the emergency regulation will go into effect for only 180 days during which time DOSH would proceed with the normal rulemaking process, including a more robust public comment period.