Last month, the Cal/OSH Standards Board issued a 15-day Notice of Proposed Modifications to what would become the permanent wildfire smoke rule. The proposed changes are not major, mostly clarifying that one of the methods for determining the Air Quality Index for particulate matter 2.5 is the Interagency Wildland Fire Air Quality Response Program.
Another change to be expected in the final rule is a revision to the Appendix B training instructions to address cleaning and maintenance of reusable respirators, purportedly to address critical shortages of N95 respirators exacerbated by the COVID-19 pandemic. While anything that extends the supply of N95 masks is welcome, that change alone is not nearly enough to solve a massive compliance problem created by the rule. With the Wildfire Smoke Rule, DOSH requires workers exposed to wildfire smoke be supplied with N95 respirators, and it does not consider surgical masks to be acceptable substitutes. DOSH concedes that N95 respirators are generally not available to any but medical workers right now, but they have no recommended substitutes.
That was one of the primary points of emphasis in our coalition’s comments — the rule needed to include some flexibility around the requirement for employers to supply N95 respirator masks for all potentially affected workers. There were already problems with N95 shortages even before the COVID-19 pandemic, but now, the shortage is extreme, and with the CDC’s and OSHA’s recommendations that all supplies of N95s should be reserved for the healthcare industry obviously makes compliance with a a rigid N95 requirement for wildfire smoke protection impossible for most employers. Now in the midst of another wildfire season in California, employers are continuing to experience N95 shortages.
Confirmed by a positive laboratory test of a respiratory specimen; and
“More likely than not” the result of a workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.
Cal/OSHA’s May 27th guidance, however, breaks from both of those key requirements for COVID-19 recordkeeping, rejecting the need for a confirmed case and flipping the burden of establishing work-relatedness on its head, establishing instead a presumption of work-related if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.
Aside from being bad policy that will result in many illnesses being recorded on 300 Logs only in California that were not actually COVID-19 cases, and/or that were not caused by exposures in the workplace, Cal/OSHA’s unique COVID-19 recording criteria are not permitted by law.
More COVID-19 cases on your logs can create significant risk of liability. For example, there is no doubt an avalanche of wrongful death and personal injury suits waiting around the corner, and while recording an illness is not an admission of wrong-doing, it is an admission that the illness was likely spread in your workplace. Plaintiffs’ attorneys will make hay of that to show your exposure control efforts were insufficient, or to show that the illnesses experienced by their clients (customers, contractors, family members of employees, and others whose suits would not be barred by workers’ compensation exclusivity) likely were also contracted in your workplace or because of your workplace. And of course, more illnesses having to be recorded also creates more potential for Cal/OSHA citations for failure to record or failure to record timely or accurately.
The Coalition for Uniformity in COVID-19 Recordkeeping
Conn Maciel Carey organized and represents the Coalition for Uniformity in COVID-19 Recordkeeping, which is composed of a broad array of California employers impacted by Cal/OSHA’s COVID-19 recordkeeping requirements. Continue reading →
On behalf of a diverse coalition of employers, Conn Maciel Carey submitted written comments and presented key comments at the Cal/OSH Standards Board’s May 21, 2020 meeting concerning the proposed permanent rule on protection from wildfire smoke. The coalition raised a host of concerns about the rule, from the potentially broad application of the rule to the inflexible respiratory protection and hierarchy of controls requirements.
Current regulations are not sufficiently specific as to what employers are required to do during wildfire events. This results in confusion on behalf of both employers and employees, leaving many employees unprotected…. As wildfire seasons worsen, the proposed regulation will avoid a potential increase in debilitating and sometimes life-threatening illnesses faced by workers exposed to wildfire smoke.
The Emergency Standard
The emergency standard (which is still in effect) requires California employers to take steps to protect employees who may be exposed to wildfire smoke. Importantly, the regulation covers “workplaces” rather than employers of a particular size or scope of service. It applies in workplaces where:
The current Air Quality Index (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.