When it became apparent yesterday that the wildfire smoke cascading throughout parts of the Northeastern United States was having a serious health effect on anyone outside and exposed to the harmful particulates contained in such smoke, certain outside activities were simply canceled, such as the major league baseball games in Philadelphia and New York City. But what if your business cannot simply give everyone the day off and you are concerned about your legal obligations to your employees, especially if their outside work is exposing them to potential adverse health effects?

Although the federal Occupational Safety and Health Administration (OSHA) does not have a specific standard relating to employees’ exposure to smoke in the general outside environment from wildfires, employers still have a general duty to provide a workplace free from recognized hazards, even if those hazards are created by outside environmental conditions. The National Institute of Occupational Safety and Health (NIOSH) has a very helpful resource for outside workers dealing with the health hazards created by wildfire smoke. The NIOSH materials can be found here.

On July 29, 2019, the California Occupational Safety and Health Standards Board (CAL/OSHA) adopted an emergency regulation titled Protection from Wildfire Smoke which provides some helpful suggestions to protect outdoor workers from wildfire smoke. This regulation applies only to California workplaces, however, where the Air Quality Index (AQI) is greater than a certain level for fine particulate matter from wildfire smoke or if it is anticipated that employees will be exposed to wildfire smoke. The current Air Quality Index is the method used by the U.S. Environmental Protection Agency (U.S. EPA) to report air quality on a real-time basis. Current AQI is also referred to as the NowCast and represents data collected over time of varying length in order to reflect present conditions as accurately as possible.

The current AQI, which the general public is now becoming aware of from frequent references in the last few days on local and national television weather forecasts, is divided into six categories as shown in the table below.

The AQI for a specific location can be found in real-time at www.airnow.gov.

While the impact of exposure to smoke particulates will vary from person to person depending upon each individual’s risk factors, including age and existing health conditions, in particular heart and lung issues, there are certain measures employers can and should consider to limit their workers’ exposure to wildfire smoke as long as these current conditions persist in parts of the U.S. These can include:

1. Limiting the time workers must be outside during these unhealthy conditions by encouraging employees to take frequent breaks.
2. Reduce the workload until the smoke has dissipated.
3. Try to move as much work as possible inside, even on a temporary basis.
4. Provide personal protective equipment such as a NIOSH-approved filtering facepiece respirator, like an N95 respirator, that can filter harmful particulates in the smoke. Employers may want to implement this program only voluntarily. However, if an employer requires their employees to use respiratory protection to limit smoke exposure in an occupational setting, they must always do it as part of OSHA’s respiratory protection program as required by OSHA’s Respiratory Protection Standard. This includes medical evaluations, respirator fit testing, and training of the workers required to wear respirators, so employers need to consider these extensive obligations carefully before requiring any respiratory protection.

Hopefully, the unhealthful conditions the wildfire smoke creates will dissipate over the next several days or weeks. In the meantime, employers should recognize that their employees’ exposure to the smoke can present a serious health concern and they should attempt to implement some of the recommendations listed above, in particular, in those cases where employees must continue