What to Expect From Work the Next Time Faraway Wildfires Poison Your Commute

• Google told workers on the U.S. East Coast to work-from-home earlier in June when Canadian wildfire smoke sent air quality to dangerous levels for human health, but that was not a step many companies took.
• Covid made companies very familiar with remote work as a worker health requirement and that playbook will need to be adopted in the future given the expected severity of wildfire seasons and broader geographic impact.
• Employers should expect their employees, as well as regulators and lawyers, to increasingly view air quality as a work health risk where negligence is punishable.

Recent fallout from Canadian wildfires has been a jarring reminder to companies that you don't have to be in California or Asia to grapple with air pollution issues.

Now, just like when Covid hit, companies are at a crossroads, needing to make decisions on what they should be doing, or doing differently, to help ensure the safety of their workers at times when air quality is at its worst. Most companies, and public officials, didn't take quick, drastic steps in early June. And that was the same in the case of Covid, with many employers slow to embrace work-from-home as the virus spread before Covid shelter in place orders were issued by local and state governments.

As New York City's air quality reached the top of the list of the world's most unhealthy cities, Google was among the first firms to tell workers across the East Coast to stay at home on June 7. It may have helped Google to make a decision that many other East Coast employers did not that California-based companies have more experience with hazardous air quality issues. New York Mayor Eric Adams issued a statement on the same day urging all New Yorkers to limit outdoor activity, but no stricter order.

The last thing downtown business districts want just as some semblance of post-Covid normal is returning is a retreat to work-from-home. But one thing is certain: companies and workers should expect these wildfire-related air quality issues to return. Recent wildfire seasons are burning wider and hotter. From 1982-1992, the national wildfire ten-year average was 2.5 million acres each year. The more recent 10-year average: 7.7 million acres, roughly the size of Maryland. The decisions companies make on these matters have significant legal and employee satisfaction ramifications, especially given the potential for future air quality issues. Advance planning can help prevent the type of scrambling that occurred early on in the Covid pandemic, according to industry attorneys and consultants.

"It absolutely makes sense for companies to start thinking about these issues and develop strategies to respond," said Sedina Banks, environmental partner at Los Angeles-based Greenberg Glusker Fields Claman & Machtinger.

Here's what companies and their employees should know about managing air quality issues: 

Companies have a duty to provide a safe work environment

Generally speaking, companies have a duty to provide a safe work environment under federal Occupational Safety and Health Administration rules. Many states also have OSHA laws concerning workplace safety. 

"Making employees work in an unhealthy environment is a direct violation of the OSHA General Duty Clause and can be met with fines and penalties," said Charles Simikian, human resources consultant and trainer at Alliance HR Partners Consulting, via email. 

Employees who don't feel safe due to the air quality can register a complaint with OSHA, and OSHA could start an investigation, Sara H. Jodka, a labor and employment attorney and member at law firm Dickinson Wright, wrote in email comments. 

An employee's claim might not be successful, but it's still a risk. She noted that during Covid, successful cases had "extreme circumstances of employer oversight" that ultimately resulted in employees dying.

Air quality is becoming a broad employee health issue

Between Covid, wildfires, radon and other environmental issues, there's been an increased awareness among employers and commercial real estate firms of the importance of air quality. Companies should avoid thinking through just one prism and seek to address air quality issues as a whole, said Thomas Brugato, of counsel in the Washington office of Covington & Burling who focuses on environmental matters, as well as civil and administrative litigation. Broadly speaking, companies need to be asking whether the systems they have in place are "adequate to ensure protection and safe air during very bad air quality events," he said.

For outside workers, this could mean offering protective equipment, reassigning them to areas with better air quality, or tinkering with their hours to correspond to times when the air quality is better, said Nathan J. Oleson, partner in the Washington office of Akin Gump, who focuses on complex employment litigation and counseling.

For indoor workers, this could mean upgrading older ventilation and filtration systems and perhaps using portable filtration units, as needed, when conditions are particularly bad. While OSHA doesn't prescribe one specific measure, it provides ventilation and filtration recommendations and other resources on its website that may be applicable for companies seeking tips to improve indoor air quality as a result of the recent wildfire situations.

Look to California, Oregon and Washington for guidance

A few states have adopted, or are considering, specific rules for companies dealing with wildfire or other air quality situations. California enacted a regulation that requires companies to proactively ensure that employees are protected when air pollution caused by wildfires impacts their work environment, Oleson said.

Companies subject to these rules are required to identify and reduce employee's harmful exposure to airborne matters, among other things. In certain situations, companies have to provide respirators such as N95 masks to all employees for voluntary use.

While the California regulation mainly applies to outdoor workers, even companies with indoor workspaces could fall under the requirements if they don't meet the threshold for exemption, Banks said. One way a company could be exempt is if its enclosed buildings or structures have air filtered by a mechanical ventilation system and windows, doors, bays and other openings are kept closed, except for necessary entrances and exits.

Oregon has passed a similar measure and Washington has a proposal for which July public hearings are scheduled. "I wouldn't be surprised if more and more states adopt these regulations that apply to companies," Banks said.

Companies should look to these states for guidance in understanding the best practices for dealing with wildfire smoke and other air quality issues, Banks said. These include making sure building-wide HVAC systems are working properly and using a high-quality air filtration system. Companies should also seek to limit potential for smoke intrusion and keep doors and windows closed as much as possible.

Supplemental air filtration could also be considered for extra protection. Commercial building-owners can consider using guidance from The American Society of Heating, Refrigerating and Air-Conditioning Engineers, a professional association, as a resource.

Keep N95 masks in stock, be work-from-home flexible

There are other seemingly small things companies can do to make it easier for employees dealing with poor air quality issues.

One simple option is to keep N95 masks in adequate stock and make them available to workers when they enter the building or leave, said Brendan Collins, an environmental lawyer who leads the manufacturing group at Ballard Spahr. Another option is to allow workers the option to work at home on bad air quality days. "Work from home is not only possible, but routine and unremarkable for certain types of people with certain jobs," Collins said.

In fact, many of the tools in employers' toolkits are ones already familiar to them as a result of the pandemic. "Covid opened employers' eyes to strategies for dealing with this," Oleson said.

Air pollution will be bigger legal, regulatory focus of future

The changing legal landscape, and links between climate change and increased severity of wildfire seasons, are reasons to start planning. Given heightened focus on air quality, it's likely more rules and regulations will be coming down the pike. Companies that take steps now to address potential issues will be better positioned to adapt to future law changes, Oleson said.

Beyond that, employers have a vested interest in demonstrating they care about their employees and their safety. "Companies need to be thinking and listening to their workers right now to ensure they are putting into place the kinds of guardrails that will ensure workers are able to do their work," said Ritse Erumi, a program officer on the Future of Work(ers) team at the Ford Foundation.