These new WA emergency rules increase heat, wildfire smoke protections for outdoor workers
Washington is increasing its heat and wildfire smoke protections for outdoor workers this summer, the state Department of Labor & Industries announced in a news release on Wednesday, June 1.
The stronger emergency rules, in place from June 15 through end of September, come in the wake of last summer’s extreme weather — an unprecedented heat wave in June had a death toll of over 100 and wildfires brought hazy skies and poor air quality to the state.
These combined hazards create “a recipe for danger every summer,” said Craig Blackwood, Labor & Industries’ assistant director for the Division of Occupational Safety & Health, in the June 1 news release.
The emergency rules are a placeholder for planned updates to the permanent heat and smoke exposure rules. These updates will hopefully be finalized by spring 2023, said Dina Lorraine, who handles public affairs for Labor & Industries.
“We are hearing we could have another super hot summer,” Lorraine told The Bellingham Herald, noting the connection between climate change and more frequent heat waves and wildfires. “Probably wildfires are just always going to happen now. We see a need for a permanent rule on that.”
Extreme heat protections
This year’s emergency rules lower the temperature at which employers must take certain protective actions for employees, compared to 2021 thresholds. Employers must require a 10-minute, paid cool-down break every two hours when the temperature is at or above 89 degrees Fahrenheit, whereas last year’s rules mandated these breaks only when temperatures surpassed 100 degrees Fahrenheit.
This year’s heat protections are more specific about the temperature at which employers must offer sufficient shade for workers who are on a break or meal period. Employers are required to offer this shade at 52 degrees Fahrenheit for workers wearing non-breathable clothing, 77 degrees Fahrenheit for workers wearing double-layer woven clothing and 89 degrees Fahrenheit for workers wearing all other clothing.
Employers can substitute shade with other cooling methods, such as an air-conditioned trailer or misting station.
This year’s emergency rules also include new requirements for employers to effectively communicate with and observe employees for signs of heat-related illness when temperatures are at or above 89 degrees. At this threshold, employers must observe workers through either a mandatory buddy system, regular communication with employees working alone such as by radio or cell phone or by other “effective” means.
There has been no change from last year’s emergency rule regarding the amount of “preventative” cool-down breaks that employers must offer “when needed.” Existing rules require enough readily accessible drinking water so that each employee can drink at least one quart per hour. Last year’s emergency rules mandated that the water must be “sufficiently cool,” a clarification also included in this year’s emergency rules.
Wildfire smoke protections
This year’s emergency rules increase worker protections against wildfire smoke by lowering the air quality index at which employers must take certain measures. The air quality index is how the U.S. Environmental Protection Agency measures air quality — a higher number means more air pollution and greater health concerns.
This year, employers are required to provide free respirators for employees’ voluntary use when the air quality index is at or above 101, when air quality becomes unhealthy for sensitive groups. At an air quality index of 101, employers must also take steps to limit workers’ smoke exposure “whenever feasible,” the news release said. Last year, the emergency rules required these measures only when index was at or above 151, which is defined as unhealthy air quality.
When air pollution from wildfire smoke is at an extremely hazardous level — at or higher than 555 micrograms of wildfire smoke particulate matter per cubic meter — employees must be provided with and required to wear more protective respirators. This level of air pollution is rare, according to the Labor & Industries June 1 news release.
Employers are encouraged by the Department of Labor & Industries to begin taking protective measures for smoke exposure at an air quality index of 69 or higher. These measures include reducing, rescheduling or relocating work; providing enclosed buildings or vehicles where air is filtered; and reducing work intensity or increasing rest periods.
“(Labor & Industries) also recommends employers take action to reduce employee exposure to dangerous air at even lower air quality index levels, especially for sensitive groups including those with asthma or other lung conditions,” the agency’s June 1 news release said.
Whatcom reacts to new rules
Some advocates for the local farmworker community said this year’s emergency protections don’t go far enough and have concerns about how effectively the rules will be enforced.
“These are a lot of the recommendations we have been asking state agencies to do for years,” said Edgar Franks, political director for Burlington-based farmworker union Familias Unidas por la Justicia.
Rosalinda Guillen, who grew up as a farmworker in Skagit and founded the local farmworker and immigrant advocacy organization Community to Community, said that the lowered temperature threshold of 89 degrees Fahrenheit is “still pretty hot.” Agricultural work is exerting, she said, and she believes that a temperature threshold of 75 degrees Fahrenheit would be more reasonable.
Guillen said that the tall, long rows of raspberry plants limit airflow through the fields, potentially exacerbating the impacts of poor air quality and heat.
She is concerned farms will prioritize food production over the health of workers, given the retaliation and abusive behavior that workers have historically reported to her. Last year, she said she received testimony from Yakima farmworkers that employees who said they needed to sit down because they felt faint, dizzy or overheated were told by supervisors to get up because the temperature had not reached the required threshold.
“We get this from the farmers: ‘It depends on climate and geography.’ The workers know that too,” Guillen said. “If they are sweating and dizzy and having headaches, the employer and supervisor should listen to the worker and let him do what he needs to do.”
She said that especially on larger farms, employers do not know when a worker has asthma and often do not ask.
“The worker will die or end up in the hospital and then the family has to prove why this person became ill or died,” Guillen said. “The only way we have been able to enforce these mechanisms is through lawsuits.”
Guillen and Franks said that appropriate enforcement would include fines or rescinding a farm’s ability to hire workers through the H-2A Guestworker Program, which allows some U.S. employers to bring foreign nationals to the country to fill temporary agricultural jobs. Farms that use these programs are where a lot of the violations happen, Franks said.
“It always comes down to enforcing,” Franks said.
“We don’t want to be adversarial to the state and process, but they need to be held accountable when these rules are put into effect,” he continued.
Franks also sees a need for the agriculture sector to do “do their part” to prevent worsening climate change, “which makes us have to have these rules and conversations in the first place.” Agriculture contributed 11 percent of the country’s greenhouse gas emissions in 2020, but climate-friendly management can also help reduce planet-warming emissions in the atmosphere, according to the U.S. Environmental Protection Agency.
Community to Community often receives calls from farmworkers who trust the organization and continues to have “promotoras” on the ground engaging in conversations with farmworkers about working conditions, Guillen said. The organization will track farmworker deaths and injuries this summer, as well as whether state agencies respond adequately to complaints about worker protections.
“We have our finger on the pulse of what’s happening in the farmworker community,” Guillen said. “That’s where we will track this. Is this really happening or not?”
Scott Isenhart, president of Tiger and Pearson Construction, said that this year’s emergency heat rules are not an outlier from common practices and that all the regulations listed are “good ideas.”
“In general, I don’t see these requirements as a big impediment to our industry,” Isenhart said in an email to The Herald. “I think the recommendations on heat-related illnesses are a good reminder to everybody we are approaching the summer season and that it’s a good idea to discuss hydration and symptom awareness before we hit July.”
The Department of Labor & Industries is holding stakeholder meetings as it develops updates to permanent rules. The agency is considering including new protections for indoor workers in the updated permanent rules, Lorraine, the public affairs official for the agency, said.
“If you work in a factory and it’s 100 degrees outside and you have no air or fans, it can be dangerous,” Lorraine said.
It will also likely have to conduct a cost-study analysis if the agency asks businesses to buy respirators, she said.
