This summer is shaping out to be another scorcher and Washington State employers should know about the Department of Labor & Industries (“LNI”) new emergency requirements for heat and smoke protections for outdoor employees effective June 15 through September 29.

Washington’s emergency requirements are meant to help employees avoid heat exhaustion and heat stroke. Covered employees include any worker who must work outside for more than 15 minutes in any 60-minute period, regardless of industry.

Workplace Heat

The emergency rules for workplace temperatures update WAC 296-62-095 – 09560 and employers are responsible for monitoring work site temperatures throughout the day. When temperatures reach 89° employers must ensure these protocols are in place for workers regardless of their clothing type:

  1. Provide enough “suitably cool” water, recommended at 50-60 degrees, for each employee to drink at least a quart an hour;
  2. Provide sufficient shade (or temperature controlled environments like air-conditioned trailer or misting station) that is large enough for, and close enough, to workers;
  3. Encourage and allow workers to take paid preventative cool-down breaks as needed, including standard rest breaks and meal periods (which do not need to be paid unless required under the state wage law); and
  4. Require a 10-minute, paid cool-down break every two hours.

If outdoor employees are required to wear clothing that may cause overheating at lower temperatures, employers should know that the temperature threshold for these requirements may differ. These requirements apply to employees wearing nonbreathable clothing, such as PPE suits, at 52° and 72° for employees wearing double-layer woven clothes, such as jackets, sweatshirts, or coveralls. Employers must train workers and supervisors on these new emergency requirements.

Wildfire Smoke

The new emergency rule for wildfire smoke is codified at WAC 296-62-085. With the unfortunate and increased reality of wildfires, the resulting smoke is also a potential hazard to employees. Under this rule, employers must monitor the Air Quality Index (AQI) for wildfire smoke and implement safety protocols. When the AQI is at 69 or higher, employers are encouraged to limit their workers exposure to smoke. LNI provides some helpful suggestions for limiting exposure:

  • Reducing, rescheduling, or relocating work;
  • Providing enclosed buildings or vehicles where the air is filtered; and
  • Reducing the work intensity or increasing rest periods.

At this AQI level, employers must also: (1) have a written smoke response plan with various elements; (2) determine smoke levels before and periodically during shifts; (3) train employees on wildfire smoke hazards and inform them of available protective measures; and (4) train supervisors on how to respond to health issues caused by smoke.

When the AQI is at 101 or higher, employers must limit workers’ exposure whenever feasible, alert employees to smoke levels, and provide and encourage use of respirators. Also note that protective respirators are required in extreme AQI levels (500+). At all times during the implementation of this emergency rule, if employees show signs of injury or illness related to smoke, employers must monitor to determine whether medical care is needed. Employers cannot prevent workers from seeking medical treatment.

These emergency rules are meant to supplement the permanent annual heat prevention rules that require ready access to at least one quart of drinking water per worker per hour, an outdoor heat exposure safety program with training, and an appropriate response to workers who are experiencing heat-related illness symptoms.

If you have questions about this blog, please reach out to the Jackson Lewis attorney with whom you often work, the authors of this blog, or any member of our Workplace Safety and Health Team.

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Photo of Sean Paisan Sean Paisan

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations…

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations, and fighting citations. Additionally, Sean also assists employers in data privacy and traditional employment matters, including litigation and counseling.

Sean’s first exposure to OSHA regulations occurred during his undergraduate studies while working for a construction company that helped build Disney’s California Adventure. After attending law school and working for the Los Angeles County District Attorney’s Office and the United States Attorney’s Office, Sean moved into private practice, where he focused on general liability matters, including serious injuries and fatalities. Through this experience, Sean became very knowledgeable on the myriad of Cal/OSHA regulations imposed on businesses, especially in the construction, manufacturing, and healthcare industries, and the consequences for violations of those regulations. From there, Sean became OSHA 30 certified and began assisting employers with all workplace safety matters, from compliance, to investigations and inspections, to the appeals of citations in California, Arizona, Washington, and Hawaii.

Throughout his career, Sean has been called upon to try cases that cannot be settled. He has handled trials in the United States District Court, California Superior Court, Cal/OSHA Appeals Board, Workers Compensation Appeals Board, and the US Department of Labor OALJ, as well as binding arbitrations. Sean has tried cases involving the following subjects: general employment, wrongful death, premises liability, unfair competition (B&P § 17200), false advertising (Lanham Act), misappropriation of trade secret, restrictive covenants, and whistleblower (AIR21).

In addition to his trial experience, he is routinely called on to assist his clients with workplace crises such as catastrophic injuries, fatalities, data breaches, and ransomware incidents. Drawing on his years of in both civil and criminal law, Sean’s unique background allows him to anticipate and proactively manage issues, rather than simply reacting to requests and inquiries by investigating agencies such as law enforcement, OSHA, Cal/OSHA, California Bureau of Investigations (BOI), Federal Aviation Administration (FAA), National Transportation Safety Board (NTSB), as well as opposing counsel in litigation matters.

In addition to his litigation experience, Sean has earned the CIPP/US credential through the International Association of Privacy Professionals (IAPP). He helps organizations manage rapidly evolving privacy threats and mitigate the potential loss and misuse of information assets. He has an in-depth understanding of how privacy laws can impact business operations. These laws include the Health Insurance Portability and Accountability Act (HIPAA), Federal Trade Commission Act (FTC Act), Health Information Technology for Economic and Clinical Health Act (HITECH), Genetic Information Nondiscrimination Act (GINA), Fair Credit Reporting Act (FCRA), Gramm-Leach-Bliley Act (GLBA), Fair and Accurate Credit Transaction Act (FACTA), Dodd-Frank Wall Street Reform and Consumer Protection Act, California Financial Information Privacy Act, Family Educational Rights and Privacy Act (FERPA), Telemarketing Sales Rule, Telephone Consumer Protection Act (TCPA), Junk Fax Prevention Act, Controlling Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), Cable Communications Policy Act, Video Privacy Protection Act, Children’s Online Privacy Protection Act (COPPA), California Online Privacy Protection Act (CalOPPA), California Consumer Privacy Act (CCPA), and California Privacy Rights Act (CPRA). With respect to laws affecting the ability of the government to obtain information, Sean can assist employers in understanding their obligations under the Federal Wiretap Act, Electronic Communications Privacy Act (ECPA), Communications Assistance for Law Enforcement Act (CALEA), Right to Financial Privacy Act, Privacy Protection Act, Foreign Intelligence Surveillance Act (FISA), and USA PATRIOT Act.

Before becoming an attorney, Sean earned his bachelor’s degree in accounting from the University of Southern California, where he also played varsity ice hockey in the ACHA. When not practicing law, Sean enjoys spending time with his wife and three young children, playing adult league ice hockey, mountain biking, and motorsports.