OSHA’s heat and smoke rules hurt employers and employees

By Oregon Business and Industry,

Over the past two years, Oregonians grew weary of well-intended but often damaging executive orders that closed places of employment, deprived people of work and compelled businesses to enforce masking rules in the face of resistance by customers and employees. Unfortunately, Oregon OSHA is once again pursuing rules that reflect a rigid and heavy-handed approach to safety without acknowledging that employers have no control over the weather.

These proposed rules are the product of a March 2020 executive order in which Gov. Kate Brown directed various state agencies to reduce greenhouse gas emissions and mitigate the effects of climate change. Oregon OSHA subsequently developed rules to protect exposed employees during hot and smoky days, both of which are expected to increase in frequency. Those rules are well-intended, but they do not recognize the way workplaces actually function, and they will lead to lost work and wages while turning employers, once again, into mask police.

The heat rules begin with the reasonable goal of ensuring that exposed employees have access to adequate shade, water and rest. But following the rules in real-world workplaces would be difficult, and in some cases impossible.

For example, language in the rules seems to require that employers deliver bottles containing at least 32 ounces of water every hour. Employers should provide adequate water and time to drink it, of course. But OSHA’s requirement assumes that affected employees work in a single location when, in fact, they can be dispersed among scattered worksites. Why not allow employers to issue reusable water bottles and urge employees to fill them?

The provisions involving rest breaks are truly problematic, as they will lead to shutdowns and lost wages. When the heat index climbs into the mid-90s, the rules require employers to provide 20 minutes of paid rest every hour. The mandatory rest periods grow longer as the temperature climbs. These mandatory rest periods would effectively end production for 20 minutes or more every hour.

Faced with such a significant loss of productivity, employers will respond to these rules by canceling work during hot days regardless of the willingness of employees to work and their ability to do so safely. The rule will end up “protecting” employees from the wages they will not be able to earn.

The smoke rules are similarly divorced from workplace reality, beginning with the fact that they require employers to conduct air-quality assessments at the beginning of each shift – even though Oregon has a clearly defined wildfire smoke season. Assessments should be required only when employees are likely to be exposed to wildfire smoke. Conducting them during February and March would be pointless busy-work.

Meanwhile, the rules contain masking requirements that will give employers and employees COVID whiplash. The rules require employers to provide filtering masks to exposed employees when the air quality index (AQI) exceeds 100, and employees can use them as they see fit. So far, so good. When the AQI hits 250, however, employers must make mask usage mandatory, turning employers, once again, into mask police. Many employees resisted masking requirements during the COVID pandemic, when masks were intended to keep other people safe. They will be doubly resistant to a similar mandate adopted for their own good, especially since they presumably will be exposed to the same smoke the moment they leave work, mask-free.

Work stoppages will occur when the AQI threatens to approach 500, a truly rare circumstance during which only employees who had been cleared for respirator use would be allowed to work. Such clearance would have to be done months in advance and could cost as much as $1,500 per employee, according to OSHA. Rather than deliver this costly training and buy expensive respirators, employers will call off work whenever the AQI looks like it could even approach 500, however fleetingly.

Oregon’s employers want to protect employees from excessive heat and smoke just as much as OSHA does. Additionally, employers want to maximize opportunities for employees to work and earn money, just as they want to create safe workspaces without impinging unnecessarily on workers’ autonomy. OSHA should adjust its rules to better balance safety and real-world working conditions. Oregonians have had enough of heavy-handed, rigid mandates that place unrealistic requirements on employers and employees alike.

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