CalChamber Raises Questions on Feasibility of Wildfire Smoke Rules

The California Chamber of Commerce and a coalition of employer groups this week voiced concerns about the feasibility of the wildfire smoke protection emergency regulation and suggested solutions that could take effect immediately since this year’s wildfire season has already begun.

In a letter sent to the Chief of the California Division of Occupational Safety and Health (Cal/OSHA) this week, the CalChamber and coalition pointed out that due to the COVID-19 pandemic, it may be logistically impossible for the state’s nonmedical employers to comply with the emergency regulation’s requirement to acquire and stockpile N95 masks. As a result, these employers may be forced to shut down when wildfires occur.

When the COVID-19 crisis began and the worldwide shortage of personal protective equipment, including N95 masks, made headlines, many businesses and citizens donated their own N95 stockpiles to help the health care system.

For some, these N95s were required for day-to-day work, but extras were on hand. For others, the N95 respirators were purchased in order to be ready for fire season.

When facing the immediate risk of COVID-19, these employers and citizens made a laudable decision that doctors and nurses needed that gear right now and donated. Regardless of the circumstance, what few N95s were in circulation were transferred to, or purchased by, the health care system.

Because the wildfire regulation remains in effect, businesses are being forced to purchase N95 respirators and compete with doctors and nurses. While recognizing the importance of protecting workers from wildfire smoke, the CalChamber and coalition believe that COVID-19 should be given priority. Health care workers and others facing immediate and ongoing respiratory hazards should be given available N95 respirators until the crisis is over.

The CalChamber and coalition are proposing two solutions:

Option 1: Provide Guidance Regarding the Temporary Use of Alternative Respirators. Permitting the use of alternative respirators, such as KN95 respirators, would allow employers to provide either equivalent or partial protection to employees while N95s remain scarce.

To facilitate the use of these alternative respirators, the CalChamber and coalition ask that Cal/OSHA consider issuing an advice letter or similar guidance to address this issue. This would provide employers a feasible method to comply with the regulation and provide at least partial protection to employees—instead of simply shutting down worksites whenever the Air Quality Index (AQI) rises to 151 for PM2.5.

Option 2: Suspend the Regulation Under the Governor’s Emergency Powers. In this state of emergency, Governor Gavin Newsom can temporarily waive regulatory requirements that are not feasible or productive. Such action could, depending on its phrasing, remove or alter compliance requirements for the wildfire smoke regulation. Though the letter does not propose text for such an order, CalChamber expresses willingness to work with the Governor on this language.

In conclusion, the letter notes that the proposed solutions are not ideal, but points out that California cannot stockpile N95 respirators that do not yet exist.

Forcing businesses to close due to the lack of the required masks is not ideal for the economy, which is struggling to re-start after months of shutdown.

The CalChamber and coalition remain eager to work with regulators to address the dangers of wildfire smoke and find solutions that improve safety while simultaneously allowing employers to comply.

Staff Contact: Robert Moutrie

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Robert Moutrie
Robert Moutrie joined the CalChamber in March 2019 as a policy advocate. He leads CalChamber advocacy on occupational safety, tourism, unemployment insurance and immigration. Moutrie has represented clients on matters such as consumer fraud litigation, civil rights, employment law claims, tort claims, and other business-related issues in federal and state courts. He previously served as an associate attorney at the Oakland-based firm of Meyers, Nave, Riback, Silver & Wilson. Moutrie earned a B.A. in political science from the University of California, Berkeley, and a J.D. with honors from the University of California, Hastings College of the Law. See full bio.