A coalition of Oregon business groups have filed a lawsuit challenging the state’s job site rules mandating that employers take steps to protect workers from extreme heat and wildfire smoke.
Regulations adopted in May by the Oregon Occupational Safety and Health Division lay out steps employers must take once the temperature or air quality reaches a certain threshold. The heat rules went into effect June 15, while the wildfire smoke rules are set to go into effect July 1.
Oregon Manufacturers and Commerce, Associated Oregon Loggers Inc. and the Oregon Forest Industries Council, which together represent more than 1,000 Oregon companies and 50 forestland owners, are seeking an injunction to prohibit the state from enforcing the new rules. The groups filed a lawsuit in the U.S. District Court in Medford the day the first of the rules took effect, arguing they are unconstitutional.
The groups allege that several provisions in the new regulations are too vague to be fairly enforced and that the state’s workplace safety agency overstepped its statutory authority by adopting them in the first place.
The groups contend that the wildfire smoke rules don’t give employers a method for determining what percentage of the pollutants in the air at a worksite are caused by wildfire smoke versus other factors, which the groups allege makes it impossible for employers to know when the rules go into effect.
They also allege that requiring employers to pay workers during heat illness prevention breaks oversteps state authority and that the Oregon Safe Employment Act does not give the state’s workplace safety agency “the authority to regulate general societal hazards which affect employees in and out of the work environment.”
Sara Duncan, a spokesperson for the Oregon Forest Industries Council, called Oregon’s rules “dramatically more strict than any other state” and said she believed the regulations would lead to work being restricted unnecessarily. Shaun Jillions, executive director for Oregon Manufacturers and Commerce, said that the state needs to work with employers to craft new rules that will protect workers and businesses.
“Nothing is more important to employers than keeping workers safe in the workplace,” Jillions said in a statement. “That’s particularly true for Oregon manufacturers, who have an exemplary record. But OR-OSHA’s new heat and smoke rules are unfortunately based on arbitrary numbers that have the potential to disrupt countless Oregon industries. The regulations are vague, nearly impossible to guarantee compliance with, and apply in conditions that would be considered safe and reasonable.”
A spokesperson for Oregon OSHA did not respond to a request for comment.
Worker advocates, who for years lobbied for the state to adopt wildfire and heat protections, praised the new rules after they were adopted in May while also calling for more stringent requirements for rest breaks and in labor housing. Those advocates criticized the business groups for challenging the regulations.
“We’re frustrated to see corporate lobbyists and lawyers attempt to delay the recently adopted heat and smoke standards from going into effect, right as summer heats up,” said Reyna Lopez, president of PCUN, Oregon’s Farmworker Union, in a statement. “For years, workers have been advocating for common-sense protections such as access to cool water, shaded rest areas, and additional breaks in high heat temperatures. Recent wildfires further demonstrate the need for state guidance on how to navigate the workplace in smoky conditions to limit a worker’s exposure to unhealthy air quality.”
Kate Suisman, attorney at the Northwest Workers’ Justice Project, said employers had ample time to participate and comment during the rule-making process and have had time to prepare for the new requirements.
The heat rules require employers to provide sufficient shaded areas, ample water and increasingly frequent rest breaks as temperatures rise. It also requires employers to develop heat prevention plans, train employees and supervisors about heat illnesses and ensure employees are given time to acclimate to heat and are regularly monitored while working in high temperatures.
The rules also require employers to protect workers from heat in agricultural labor housing, including giving workers access to cooling areas and fans.
The wildfire smoke rules require employers to provide training to employees about the dangers of wildfire smoke, make respirators available as the air quality reaches unhealthy levels or require workers to wear respirators if air quality levels spike above a “very unhealthy” 251 on the 500-point Air Quality Index. The state also recommends that employers consider relocating to other job sites when the air quality is unhealthy.
The federal government does not have similar rules, although it is developing heat regulations. Several states have adopted their own heat standards, and California has rules to protect workers in extreme heat and wildfire smoke.
Oregon adopted temporary emergency rules to protect workers from extreme heat and wildfire smoke last year after workers across the state were exposed to harsh working conditions during unprecedented heat in June 2021 and wildfires in September 2020. Those rules expired earlier this year.
At least two workers, farmworker Sebastian Francisco Perez and construction worker Dan Harris, died from heat-related illnesses after working through blistering heat last June. They were among nearly 100 people across Oregon who died during last year’s heat wave as temperatures reached 116 in Portland and even higher elsewhere, shattering all-time high temperature records across the state.
Gov. Kate Brown directed Oregon OSHA and the Oregon Health Authority to develop standards to protect employees from excessive heat and wildfire smoke back in March 2020. It was part of a broader executive order mandating that certain state agencies engage in efforts to reduce greenhouse gas emissions and mitigate the impacts of climate change.
— Jamie Goldberg; jgoldberg@oregonian.com; @jamiebgoldberg