As expected, the Department of Labor and Industries adopted emergency rules, which take effect on June 15, to protect workers exposed to wildfire smoke that intrudes into the work environment and employees working in warm weather conditions. These rules could impact any retailer with employees that work outdoors or provide roadside services and/or delivery for more than one hour per shift.
The Wildfire Smoke Emergency Rules (2221 CR103E Adoption (wa.gov)) add new employer responsibilities to determine hazard levels, hazard communications, information and training requirements, and the use of masks and voluntary filtration. The emergency rule sets specific air quality standards that trigger increasing requirements for respirator use and, under extreme conditions, could require changing work schedules, moving work indoors, or require the use of portable filtration systems. Employers can determine air quality standards from readily available monitoring applications or services.
Ambient Temperature Emergency Rules (2222 CR103E Adoption (wa.gov)) In 2021, emergency rule measures were triggered when temperatures exceeded 100 degrees F. The new emergency rule takes effect at 89 degrees F. and includes training and education requirements, ensuring employers provide adequate water and, when needed, additional rest and cool down periods for workers.
WR understands the need to protect workers in outdoor settings under extreme heat conditions or wildfire smoke. However, there is concern that the Department is not adhering to the requirements for public input, data sharing, transparency, economic impact analysis, and dialogue with stakeholders as mandated in the Administrative Procedures Act (APA). Instead, L&I, and other state agencies, are avoiding the requirements of the APA by using emergency rulemaking authority.
WR is actively meeting with legislative leaders to alert them to the abuse of emergency rulemaking authority and encouraging lawmakers to remind agencies of their legal obligation to adhere to the rulemaking process under the APA.
