Washington State Adopts Wildfire Smoke Regulations

On Dec. 14, the Washington State Department of Labor and Industries (L&I) finalized and adopted new rules focused on protecting workers from wildfire smoke hazards that will take effect on Jan. 15, 2024.

In June 2022, L&I adopted emergency rules that added to earlier emergency rules to protect employees working outside from wildfire smoke hazards. The new rules largely incorporate the emergency rules, but also have a new exemption, revised definitions, and additional clarifications on employer obligations. With these new rules, Washington joins Oregon and California as the only states to regulate wildfire smoke hazards for workers.

The new measures will be codified in the Washington Administrative Code (WAC) Chapter 296-820, Wildfire Smoke. A similar set of rules newly applicable to the agriculture industry are codified at WAC 296-307.

The new regulations require employers to:

• Periodically determine current PM2.5 levels for covered worksites.
• Establish and implement a two-way wildfire smoke hazard communication system in a form readily understandable by all affected employees, including ways to encourage employees to inform employers of wildfire smoke hazards without fear of reprisal.
• Include a wildfire smoke response plan tailored for the workplace in the written accident prevention plan program before engaging in work that exposes employees to a certain PM2.5 concentration levels, covering 10 mandatory elements.
• Provide all employees with information and training regarding wildfire smoke before work that exposes the employees to the threshold PM2.5 concentration level. Provide training at least annually thereafter. Training must include the detailed information found in WAC 296-820-850, Appendix A, such as “identification of health effects and symptoms of wildfire smoke exposure,” “the importance of informing the employer when the employee is experiencing symptoms of wildfire smoke exposure,” and information regarding proper respirator use.
• Implement enhanced assessment, monitoring and medical response for wildfire smoke exposure symptoms.
• At varying elevated PM2.5 levels, implement certain exposure controls, and comply with provision and use requirements for N95 filtering facepieces or other compliant respirators.

The Department of Labor and Industries has set up a new webpage to provide employers with information and resources related to the new wildfire smoke rules.

Kathryn Fletcher is an attorney with Ogletree Deakins in Seattle. Theodore Lee is an attorney with Ogletree Deakins in Sacramento, Calif. © 2023. All rights reserved. Reprinted with permission.