Where There's (Wildfire) Smoke, There Are Safety and Compliance Concerns for Employers

At a Glance

• Federal OSHA has no dedicated federal wildfire smoke standard, but relies on the Act's General Duty Clause to require employers to protect workers from recognized wildfire smoke hazards. In states with no OSHA-approved state plan, this means no specific measures are required to address the hazard wildfire smoke poses to employees.
• However, some state-plan states — like California, Oregon, and Washington — have each adopted binding, air quality index triggered wildfire smoke rules that impose specific monitoring, training, and respiratory protection duties.
• Employers should also consider obligations under the Americans with Disabilities Act, the Family Medical Leave Act, and state counterparts when employees with respiratory or other disabling conditions require accommodations or absence from work during poor air quality events.

As wildfire seasons grow longer and more severe, employers face growing obligations to protect employees from wildfire smoke exposure in the workplace. Employers with outdoor or poorly ventilated workforces should review their air quality monitoring, training, respiratory protection, and accommodations practices to be prepared to respond to these increasing risks.

The Baseline: OSHA's General Duty Clause

The federal Occupational Safety and Health Administration (OSHA) has not adopted a standard specifically addressing wildfire smoke. In the absence of such a standard, OSHA relies on Section 5(a)(1) of the Act, known as the General Duty Clause, which requires employers to furnish a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm." Because wildfire smoke and the fine particulate matter (PM2.5) it contains are widely recognized as health hazards, OSHA has signaled that it can and will cite employers under this clause when smoke conditions create a serious risk and the employer fails to take feasible protective measures.

In practice, employers relying on the General Duty Clause should monitor local Air Quality Index (AQI) readings, reduce exposure duration or intensity when air quality deteriorates, provide N95 or better respiratory protection, relocate or reschedule outdoor work where feasible, and train employees to recognize smoke-related symptoms. Because there is no bright-line trigger, employers must exercise judgment based on recognized hazard thresholds and industry guidance, and document the steps taken to reduce exposure.

State-Specific Standards

Some states, however, have moved beyond the general duty framework to adopt binding, detailed wildfire smoke standards.

California was the first state to act, adopting a wildfire smoke regulation through Cal/OSHA in July 2019. The rule applies whenever the AQI for PM2.5 reaches 151 or higher and employees are reasonably anticipated to be exposed, with certain exemptions (e.g., enclosed buildings with filtered air, workplaces where exposure lasts one hour or less per shift). Covered employers must monitor AQI before and periodically during shifts, communicate current conditions to employees, provide training on wildfire smoke hazards, and make respiratory protection (such as NIOSH-approved N95 respirators) available for voluntary use. Once the AQI for PM2.5 exceeds 500, respirator use becomes mandatory rather than voluntary.

Oregon and Washington, likewise, have adopted similar requirements under their state safety programs.

No specific standard concerning wildfire smoke has been adopted in all of the remaining states. Regardless, whether they have a state safety plan or rely on federal OSHA's enforcement, the General Duty Clause still controls to protect employees from the hazards of wildfire smoke exposure — and some states, like Michigan, have already taken steps to remind employers of this obligation and that any unsafe conditions related to wildfire smoke exposure should be reported to state-level OSHA agencies.

ADA, FMLA, and Related State Law Considerations

In addition to workplace safety compliance, employers should be mindful of their obligations under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and related state laws when wildfire smoke affects employees with certain health conditions.

Employees with asthma, chronic obstructive pulmonary disease (COPD), cardiovascular conditions, or other respiratory or inflammatory conditions may experience significant symptom flare-ups during periods of poor air quality caused by wildfire smoke, interfering with their ability to perform their essential job functions. Under the ADA, these conditions may qualify as disabilities if they substantially limit one or more major life activities, such as breathing, walking, or cardiovascular function. Importantly, the ADA's definition of disability includes conditions that are episodic or in remission if, when active, they would substantially limit a major life activity. This means that an employee whose asthma or other condition is typically well-controlled may still be protected under the ADA when wildfire smoke triggers a flare-up. Also keep in mind that many states have laws that may provide broader coverage and/or protections than the ADA.

When wildfire smoke degrades air quality, employees with covered conditions may request accommodations such as temporary remote work arrangements, reassignment to indoor duties, modified schedules to limit outdoor exposure, access to air-filtered spaces, or permission to use personal protective equipment beyond what is otherwise required. Employers should respond to such requests by engaging in the interactive process, requesting additional information as permitted by law, and working collaboratively with the employee to identify effective solutions that enable the employee to perform essential job functions without imposing undue hardship on the employer. While employers are not always required to provide the specific accommodation requested, they must make good-faith efforts to find an effective alternative. Employers should document these discussions and the accommodations considered and provided.

Employees affected by wildfire smoke may also be entitled to protected leave when their condition renders them unable to perform their job or requires treatment. Employers should consider applicability of FMLA and any state laws providing leave entitlements such as paid sick leave.

Practical Takeaways for Employers

• Employers operating in California, Oregon, or Washington should be familiar and ready to act under these standards when facing the possibility of their employees being exposed to wildfire smoke.
• Employers elsewhere should not assume they are exempt from regulation. The lack of a dedicated federal standard does not eliminate the risk of citation under the General Duty Clause, particularly as wildfire smoke events become more frequent and OSHA enforcement attention increases.
• Even without operations in California, Oregon, or Washington, employers should consider adopting AQI monitoring protocols, tiered response plans, and/or respiratory protection programs in response to wildfire smoke, as compliance with these stringent requirements is often more than enough to satisfy their obligation under the General Duty Clause.
• Supervisors and HR personnel should be mindful that the ADA, FMLA, and state laws may apply when employees request a disability accommodation or absence from work due to health conditions exacerbated by wildfire smoke. By addressing these other legal considerations alongside OSHA compliance, employers can better protect employee health while minimizing legal exposure.

For More Information

The labor and employment team at Faegre Drinker will continue to monitor and report on these developments. For further information, you may contact the authors.