SMOKE

California has now adopted interim standards for worker smoke exposure.

Those standards (see link at bottom of this post), promulgated by the California Occupational Safety and Health Standards Board, will be in effect for a year.

The major California wildfires over the last few years resulted in large portions of the state being swathed in smoke laden with particulates. Foul air drifted from Northern California counties to the Bay Area and Central California. Southern California residents suffered from major fires down there.

Even for healthy folks, being outdoors was unpleasant and hazardous to health.

But many workers are outside most of the time in their jobs. We’re talking big sections of the California workforce…Farmworkers, delivery drivers, construction workers, public safety personnel, landscapers, recreational workers, sanitation workers and recyclers, just to name a few.

These new smoke standards will help those workers. Kudos to Worksafe, the California Federation of Labor, and California Rural Legal Assistance for petitioning for adoption of the standards.

Worksafe’s press release on the standards noted that:

“Wildfire smoke contains high levels of fine particulate matter (PM2.5) which can reduce lung function, worsen heart conditions, and exacerbate respiratory disorders.  “As with all disaster preparedness, time is of the essence,” says Worksafe Executive Director Doug Parker. “It is crucial that these protections are in place before more workers are exposed to harmful conditions that can have lasting health consequences.” 

During the 2018 wildfires, reports of agricultural workers laboring unprotected in smoky conditions troubled labor, environmental justice, and community groups throughout the state and prompted volunteer efforts to distribute N95 masks in the fields. The new rule will require employers to implement necessary controls when the AQI for fine particulate matter reaches 151 or above. 

“Employers are obligated to assess occupational hazards and provide their workers with adequate protections, but during the 2017 and 2018 wildfires we saw that some employers were unprepared or unwilling to address employee concerns about smoke,” says Worksafe Senior Staff Attorney Nicole Marquez. “Today’s decision affirms that affected workers, including low-income and immigrant workers, should not have to rely on personal resources or volunteer charity to get the protective equipment they need.”

Preventing or minimizing smoke and particulate damage is key. But what are the implications of wildfire smoke from a workers’ comp standpoint?

It is unclear to me whether there was a spike in workers’ comp  claims after the major wildfires, but medical problems from exposure could manifest themselves over time, particularly if there are more exposures.

California has long covered occupational illness from exposure to Valley Fever spores. Valley Fever spores are known to travel for long distances in the atmosphere, particularly in the Central Valley.

And at least one case (Antron Lee V. State of Calfornia, Department of Corrections ADJ6652737) upheld a finding that Valley Fever could be classified as a pneumonia for purposes of the Labor Code 3212.10 presumption applicable to certain peace officers.

So I would expect that claims alleging lung disease or other illness from wildfire exposure could be found industrial even if the smoke/particulate exposure was due to a smoke event far away.

If we keep having these major events this could be a source of significant downstream liability risk for some employers whose workers are frequently outdoors.

The new standards require employers to take steps to mitigate that risk. That’s great.

Here is the DIR press release on the new interim standards:

https://www.dir.ca.gov/DIRNews/2019/2019-66.pdf

Here is the link to the text of the new Cal-OSHA standards:

https://www.dir.ca.gov/oshsb/Protection-from-Wildfire-Smoke-Emergency.html

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/