Cal/OSHA Ignores N95 Mask Shortage in Proposed Permanent Wildfire Smoke Regulation

Last year, the Wildfire Smoke Protection Emergency Regulation went into effect, requiring businesses to monitor the local AQI, then provide N95 respirators if the AQI rises above 151, among other provisions.

With the Emergency Regulation set to expire in July, the Cal/OSHA Standards Division will soon adopt a Permanent Regulation regarding wildfire smoke protections.  The Proposed Wildfire Smoke Regulation is largely similar to the current Emergency Regulation, but there are some positive changes that will make the regulation more feasible and practical for businesses to comply with. Namely, the Proposed Regulation allows for the opening/closing of building doors and enclosed vehicles as necessary in the regular course of business, whereas the current regulation does not.

The Proposed Regulation, however, maintains existing ambiguities and requirements that have or will create new costs for agricultural employers, given that a large portion of the workforce is outdoors.

Notably, the proposed regulation does not address the immediate and timely issue of accessing N95 respirators in light of the worldwide shortage resulting from COVID-19.  The issue of availability and the significant increase in cost was specifically raised by stakeholders, including CCM prior to and during a public workshop on May 21st.  Cal/OSHA responded that the spike in demand of N95 respirators is likely to be short-lived are that the cost for masks will likely return to normal as more masks are produced.

Cal/OSHA  did say, however, it may release new guidance if a supply shortage occurs during a wildfire.   Given the rapid rate at which wildfires can occur, this “wait and see” approach is not appropriate. A standing guidance for alternative PPE in the event of a supply shortage is needed to ensure employees are protected, and employers are able to continue operating while being in compliance with the law.

CCM joined 33 other organizations representing agriculture, manufacturers, and other business sectors in sending a letter to Cal/OSHA outlining these and other concerns.  You can read the full letter here.

Cal/OSHA is expected to vote on the Permanent Regulation in July. The Board is also discussing significant changes in the anticipated revision of the yet-to-be Permanent Regulation, referred to as the 3.0 version.

CCM will continue to work with our coalition partners to engage with Cal/OSHA on the Wildfire Smoke Regulation and the future 3.0 version.

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