As many Washington residents are aware, wildfires, and wildfire smoke, are becoming an increasingly regular occurrence. The increase in wildfires has often led to days—or even weeks—of smoky air throughout the state.

Because wildfire smoke contains a mixture of harmful chemicals and particles, Washington has implemented new wildfire smoke rules, which become effective on January 15, 2024. Washington considers exposure to wildfire smoke a hazard from which employers have a duty to protect employees while working. Employers should consider wildfire smoke the same as any other jobsite hazard where compliance with the regulations is required.

Background

Wildfire smoke can be measured in two ways. First, as PM_2.5, which is essentially a measure of fine particulate matter in micrograms per cubic meter (μg/m3). Second, NowCast AQI (“Air Quality Index”) PM_2.5, is an index produced by the Environmental Protection Agency (EPA) used to communicate general air quality based on PM_2.5. The greater the PM_2.5 or AQI, the more particulates are in the air, which requires greater protection for workers.

The following measurements represent the general air quality on any given day:

Applicability

The regulations governing Wildfire Smoke are enumerated in Washington Administrative Code 296-820-805 through 296-820-860. The regulations apply to all workplaces except for those that are in either enclosed buildings or vehicles. Accordingly, worksites where employees are either outside, or in unenclosed workspaces—such as construction sites—must abide by the Wildfire Smoke regulations.

Responsibility of Employers

Under the new regulations, employers must take the following actions to ensure compliance: (1) implement a Wildfire Smoke Response Plan (WSRP); (2) train employees about the WSRP and their ability to report wildfire smoke and seek medical attention without reprisal; and (3) monitor the air quality at jobsites.

(1) Develop a Wildfire Smoke Response Plan

Given the risk to employees through exposure to wildfire smoke, the new regulations require employers to implement a system of communicating wildfire smoke hazards. To do so, the employer must develop a Wildfire Smoke Response Plan within the written Accident Prevention Plan (APP). the WSRP must be in place before work begins where an employee is exposed to a PM_2.5 of 20.5 µg/m3 (AQI 69) or more.

Any WSRP must be tailored to the workplace and include provisions detailing (1) the health effects and symptoms of wildfire smoke exposure; (2) the importance of informing the employer when the employee is experiencing symptoms of wildfire smoke exposure; (3) the right to obtain medical attention without fear of reprisal; (4) the requirements of the Wildfire Smoke Regulations; (5) the employer’s methods of determining and communicating the particulate level (PM_2.5 or AQI); (6) the employer’s response plan; (7) language describing the benefits of respirator use when exposed to wildfire smoke; (8) the risks of wearing a respirator without medical evaluation; and (9) instructions for how to put on, use, and maintain the respirators provided by the employer. 

While all eight elements must be satisfied to comply with the new regulations, the format of any WSRP should mirror that of the broader APP. Rather than re-write the APP to include a new WSRP, employers may include an addendum covering all necessary areas.

(2) Training Employees on the WSRP

In addition to developing a WSRP, employers must train employees on its contents, effective implementation, expectations of the employer, protections of employees, and how to use personal protective equipment should wildfire smoke rise to unhealthy levels.

The training must occur annually and include instruction on each of the elements that must be included in the WSRP, enumerated above.

The key takeaway from the required training elements is the need for the employer to develop a method of open communication between the employer and employee when the latter is working on the jobsite. The employer must be able to communicate the particulate level in the air to employees and, in turn, the employees must be able to inquire about the particulate level from the employer. The employee must also be able to obtain medical attention for employees on the jobsite if they experience negative symptoms of exposure.

Similarly important is the need for covered employers to train employees on proper respirator use, even if the employees do not regularly use respirators in their work. The new Wildfire Smoke Regulation requires that any employee who may be exposed to wildfire smoke be trained on proper respirator use, maintenance, and location.

In addition to the employee’s training, supervisors must have additional training on:

• The procedures supervisors must follow to implement the applicable provisions of the Wildfire Smoke Regulations;
• The procedures supervisors must follow if an employee exhibits symptoms of wildfire smoke exposure; and,
• Procedures for transporting employees to an emergency medical service provider, or other appropriate level of care, if necessary.

(3) Monitoring Air Quality

Once the WSRP has been implemented and employees have been trained on its use, employers must monitor any jobsite where the PM_2.5 are 20.5 µg/m3 (AQI 69) or more. To determine the PM_2.5 , employers may consult any of the following sources:

• Washington Department of Ecology website;
• Air Quality WA mobile app;
• Washington smoke information website;
• U.S. Environmental Protection Agency (EPA) Fire and Smoke Map;
• EPA AirNow website;
• EPA AirNow mobile app;
• U.S. Forest Service AirFire website; or
• A local clean air agency website.

Employers may also obtain the information directly from the Washington Department of Ecology, the EPA, the EPA EnviroFlash.info site, or a local clean air agency by telephone, email, text, or other effective method. Finally, an employer may choose to use a direct-reading particulate sensor to identify harmful exposures so long as it does not underestimate the employee’s exposure to wildfire smoke and is specifically designed to measure the concentration of airborne particles.

Regardless of the method used, employers must be able to communicate to their employees the current PM_2.5 at any given time. This is because the new regulations require different levels of employee protection based on the PM_2.5 at any time. A summary of the requirements is below:

Employers in Washington should consider wildfire smoke, and smoke exposure, as a hazard from which they have a duty to protect their employees. Developing a WSRP, training employees on its use, and monitoring jobsites will ensure that employees remain safe when exposed to wildfire smoke and employers comply with the new wildfire smoke regulations.