When temperatures are at or above 89 degrees Fahrenheit, employers will now be required to ensure workers take mandatory paid ten minute breaks every two hours and to “encourage and allow” any employee to take a break to cool off whenever they feel it is necessary. The previous threshold for mandatory cool-down breaks was 100 degrees F.
When combined with existing rules employers are now required to explain the heat related risks and response plans to employees before work starts. In addition, employers are required to provide a shaded or air-conditioned space “ large enough and close enough” to accommodate workers as well as enough “sufficiently cool” water for each worker to drink one quart per hour.
For wildfire smoke, employers are now required to provide air filtering N95 masks when the Air Quality Index reaches 101, which is considered unhealthy for sensitive groups. Last year the threshold was an AQI of 151, which is considered unhealthy for everyone.
Employers are also required to have a written heat exposure and wildfire smoke response plans.
The changes are the result of two emergency rules issued by the state Department of Labor and Industries on June 1, 2022. The rules are in effect from June 15 – September 30 of this year.
“We certainly within LNI, because we’re also the administrator of the workers’ comp system, see heat related claims each and every year,” said Joel Sacks, Director of the Washington Department of Labor and Industries.
“There is more clarity in this set of rules and a couple of additional expectations,” said Sacks.
”The expectation of ensuring beforehand that there’s adequate shade, ensuring beforehand that once the temperatures hit 89 degrees that every 2 hours a worker has an opportunity to get a break to be able to cool off a little bit”. . . “and the trigger for a worker to be able to expect their employer to provide them with an N95.”
“The change really is at what point should an employer provide to their workers the N95s. Now at this point it’s voluntary whether a worker will wear them or not. We would certainly encourage it,” said Sacks.
It’s the second year in a row that L&I has issued emergency rules relating to heat and diminished air quality. The latest rules are modified versions of the emergency rules from 2021 which were issued during a record breaking heat wave and following the exceptionally smoky end of summer in 2020.
Permanent rulemaking for both heat and smoke began last year, but that process has not been completed for either category of work related hazard. Some outspoken workers’ rights advocates were critical of emergency rules put into place last year as not stringent enough to protect workers from dangerously hot temps and poor air quality. On the employer side, groups representing impacted industry sectors have expressed frustration about the L&I’s continued use of emergency rules as opposed to finalizing permanent rules which require the agency to solicit and consider feedback from impacted stakeholders.