Former WA Attorney General weighs in on Oregon’s battle over smoke regulations amid heatwave

As new Oregon workplace smoke regulations take effect this week, a federal lawsuit filed in Medford, Ore. challenges the state’s workplace heat policy.

The regulation comes after a series of injuries, illnesses, and even the death of an Oregon farmer facing heat and wildfire smoke in the summers, heat, and smoke. The rules require employers to provide respirator masks in smoky conditions and water and shade breaks in heat.

WA workers receive extra breaks to keep cool in the extreme heat

Oregon’s new wildfire smoke policy makes employers responsible for protecting workers from smoke, notably “fine particulate matter” from wildfire smoke.

Oregon Manufacturers and Commerce (OMC), Associated Oregon Loggers Inc. (AOL), and the Oregon Forest Industries Council (OFIC) are asking the U.S. District Court in Medford to issue a temporary restraining order, preliminary injunction, and permanent injunction to prohibit enforcement of wildfire smoke employee protection rules.

“They say the rules are too vague to be fairly enforced,” former State Attorney General Rob McKenna said on Seattle’s Morning News. “For example, the Oregon groups are saying, how do we know which particulates are coming from wildfire smoke, and which are coming from other sources?”

According to McKenna, the Bureau of Labor and Industries website has a page about wildfire smoke with links to multiple tools to identify how much wildfire smoke is in the air.

“They’re also arguing that the Oregon Safety and Health Division overstepped its authority with these rules in some ways,” McKenna said. “So, for example, it requires employers to pay people when they’re not working, when the reason they’re not working is the conditions. These employers are arguing that the state, at a regulatory level without a statute, can’t require employers to pay workers during heat illness prevention breaks, for example, that they should be unpaid. So that’s going to be an interesting fight.”

Oregon’s laws require employers to provide shaded areas, at least a quart of water every hour, and a 10-minute rest break to cool off every two hours.

“And when things get bad enough, you’re being told as an employer, you need to get people indoors, not make them work outside, etc.,” McKenna said. “So it really depends on the conditions on the heat and then the smoke levels.”

The Seattle area is currently under an excessive heat warning, with afternoon temperatures unlikely to drop below 90 through Saturday.

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