Still No Clear Compliance Path For Wildfire Smoke Regulation

In the midst of COVID-19, it is easy to forget the host of other regulations and obligations with which businesses must comply in California.  As summer temperatures continue to be high and winds pick up, one regulation to keep an eye on is Cal/OSHA’s Wildfire Smoke Protection Emergency Regulation (Section 51.41.1) which (among other provisions) requires employers to have on hand for their employees, N95 respirators when the AQI for PM2.5 hits 150 – or close down.

As we all know, COVID-19 has made N95 shortages a worldwide issue for much of 2020, and what scant supplies can be located are prioritized for healthcare.  With this shortage hanging in the air, the question employers’ have been asking is: How are we supposed to purchase what can’t be purchased? Or, in other words, what do you want us to do when the AQI rises if N95 masks aren’t available or are infeasibly expensive due to COVID-19?

For a while, it seemed like a solution was forthcoming.  Shortly before the June Cal/OSHA Standards Board meeting, CalChamber sent a public letter to Chief Parker and others outlining this difficult scenario and requesting some alternative compliance mechanism be found.  Shortly thereafter, at the June 18th Standards Board Meeting, staff indicated that they were testing alternatives such as KN95 respirators, and intended to publish a list of suitable alternative compliance devices.  Though the indication was promising, two months later, there is no published alternative compliance mechanism.

This leaves businesses across the state stuck between the same proverbial rock and a hard place – compete with healthcare for scant N95s at unprecedented prices in order to stockpile for the potential of a wildfire, or close down if AQI’s rise?

We have only just started the wildfire season in California, which generally lasts until fall.  Both July and August have seen multiple wildfires (though none appear have raised AQI’s to the 150 threshold).  Cal/OSHA should act immediately to provide an alternative so that employers have a realistic option to protect their employees in the unfortunate event of another wildfire.

Robert Moutrie, Policy Advocate