Section 1 Short title
This Act may be cited as the “Smoke Mitigation and Occupational Key Enhancements Act” or “SMOKE Act”.
Smoke Mitigation and Occupational Key Enhancements Act
A BILL
To direct the Secretary of Labor to promulgate an occupational safety and health standard to protect workers from adverse air, and for other purposes.
Sec. 2 Findings
Congress finds the following:
Climate change is making wildland fires more frequent and longer lasting.
Wildfire smoke is a mixture of air pollutants, of which the principal public health threat is particulate matter.
Wildfire smoke has been directly linked to poor air quality that can lead to significant health effects and costs to society (such as emergency department visits, hospital admissions, and deaths, often due to respiratory ailments).
In addition to climate change, other factors—land use, large-scale insect infestation, fuel availability (including invasive species such as highly flammable cheatgrass), and management practices, including fire suppression—play an important role in wildfire frequency and intensity.
In summer 2023, smoke from wildfires in Canada drifted into the United States, leading to extremely poor air quality across the eastern United States. Since then, States across the country have issued poor air quality alerts, with New York City having reported the worst air quality in the world on June 7, 2023. Due to these fires, about 128 million Americans in 18 States were under air quality alerts.
While officials have warned Americans to be mindful of poor air quality conditions, including to limit time spent outside, worker protections are unclear in these circumstances.
Sec. 3 OSHA Standards
Proposed standard— Not later than 2 years after the date of enactment of this Act, the Secretary of Labor shall, pursuant to section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)), in consultation with the Administrator of the Environmental Protection Agency and the Secretary of Health and Human Services (acting through the Director of the National Institute on Occupational Safety and Health), and in accordance with the best available evidence, promulgate a proposed standard on prevention of workplace injury from exposure to adverse air.
Final standard— Not later than 42 months after the date of enactment of this Act, the Secretary shall promulgate a final standard on prevention of workplace injury from exposure to adverse air that shall—
presume as feasible any requirement that—
is substantially equivalent to a requirement adopted by a State plan that has been approved by the Secretary under section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667); and
has been in effect for at least 1 year;
at a minimum, include the requirements described in section 4; and
be effective and enforceable in the same manner and to the same extent as any standard promulgated under section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)).
Interim final standard—
In general— If the proposed standard described in subsection (a) is not promulgated, not later than 2 years after the date of enactment of this Act, the Secretary of Labor shall promulgate an interim final standard on prevention of workplace injury from exposure to adverse air not later than 2 years and 60 days after such date of enactment—
to require covered employers to monitor the AQI for PM2.5 and, if adverse air is present, communicate the AQI for PM2.5 to the covered employees of such covered employers; and
that shall, at a minimum, include a requirement to protect employees from discrimination or retaliation for exercising the rights of the employees under the interim final standard.
Applicability of other statutory requirements— The following shall not apply to the promulgation of the interim final standard under this subsection:
The requirements applicable to occupational safety and health standards under section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)).
The requirements of section 553(c) of chapter 5 and chapter 6 of title 5, United States Code.
The requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
Effective date of interim standard— The interim final standard shall—
take effect on a date that is not later than 30 days after the promulgation of such standard;
have the same legal effect and be enforceable in the same manner and to the same extent as any standard promulgated under section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)); and
be in effect until the final standard described in subsection (b) becomes effective and enforceable.
Sec. 4 Requirements for final standards
In general— The final standard promulgated under section 3(b) shall include the following requirements:
Controls related to monitoring— Each covered employer shall, at the start of each work day or shift, and every 2 hours thereafter, determine whether adverse air is present at each covered workplace for each such work day or shift by monitoring or obtaining the AQI for PM2.5 forecasts from—
the Environmental Protection Agency;
the Interagency Wildland Fire Air Quality Response Program; or
the United States Forest Service.
Employer communication of potential adverse air exposures— Each covered employer shall establish and implement a system to communicate the presence of adverse air in a language and manner readily understandable by covered employees, which shall include procedures that inform such employees of the following:
Each time during the workday when adverse air affects the workplace of such employees.
The protective controls described in paragraph (3) available to employees to reduce exposure to adverse air.
The potential health impacts of breathing adverse air without proper protection.
The policy of the employer that employees are encouraged to report to the employer, without fear of discrimination or retaliation—
the presence of adverse air in the workplace; and
adverse symptoms, including asthma attacks, difficulty breathing, or chest pain, that the employee is at risk of experiencing if exposed to adverse air.
Protective controls— Each covered employer shall provide the following at each covered workplace of the employer:
Engineering controls—
In general— Reduction of employee exposure to adverse air by engineering controls whenever feasible, such as by providing enclosed buildings, structures, or vehicles where the air is filtered to prevent exposure to adverse air within such buildings, structures, or vehicles.
Insufficient engineering controls— If engineering controls are insufficient to prevent exposure to adverse air, reduction of employee exposure to such air to the extent feasible.
Administrative controls— Whenever engineering controls are not feasible or do not reduce employee exposures to adverse air, implementation, if feasible, of administrative controls, such as relocating work to a location where adverse air is not present, allowing remote work, changing work schedules, reducing work intensity, or providing additional rest periods.
Personal protective equipment—
In general— Whenever adverse air is present, the provision of a sufficient number of respirators that meet the requirements of clause (ii) to all covered employees for voluntary use and encouragement to employees to use such respirators.
Respirators provided— A respirator provided under clause (i) shall be—
a device approved by the National Institute for Occupational Safety and Health that effectively protects the wearers from inhalation of PM2.5, such as N95 filtering facepiece respirators;
cleaned or replaced as appropriate; and
stored and maintained in such a way so that such respirators do not present a health hazard to users.
Sec. 5 Adverse air related leave
In general— In the case of an employee whose health would be jeopardized by exposure to adverse air, such employee shall be entitled to a total of 12 weeks of unpaid leave per 12-month period for the purposes of avoiding such exposure at a covered workplace where the employee is employed.
Substitution of paid leave— An employee may elect to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subsection (a) for any part of the 12-week period of such leave under such subsection.
Employment protection during adverse air related leave—
In general— Any eligible employee who uses leave under subsection (a) for the intended purpose of such leave shall be entitled, on return from using such leave—
to be restored by the employer to the position of employment held by the employee when the use of such leave commenced; or
to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
Loss of benefits— The use of such leave shall not result in the loss of any employment benefit accrued prior to the date on which the use of leave under subsection (a) commenced.
Limitations— Nothing in this section shall be construed to entitle any restored employee to—
the accrual of any seniority or employment benefits during any period during which such restored employee uses leave under subsection (a); or
any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not used such leave.
Construction— Nothing in this section shall be construed to prohibit an employer from requiring an employee to report periodically to the employer on the status and intention of the employee to return to work.
Certification—
In general— An employer may require that a request for leave under subsection (a) be supported by a certification issued by the health care provider of the eligible employee. The employee shall provide, in a timely manner, a copy of such certification to the employer.
Sufficient Certification— Certification provided under paragraph (1) shall be sufficient if it states—
the appropriate medical facts within the knowledge of the health care provider regarding the condition; and
a statement that the health of the employee would be endangered by exposure to unsafe air.
Subsequent Recertification— The employer may require that the eligible employee obtain subsequent recertifications on a reasonable basis.
Sec. 6 Definitions
In this Act:
Adverse air— The term adverse air means air with an AQI of at least 151 for PM2.5.
AQI— The term AQI means the measure of the concentration of ozone, particulate matter, carbon monoxide, sulfur dioxide, and nitrogen dioxide in the air described under Appendix G to part 58 of title 40, Code of Federal Regulations.
Covered employee—
In general— The term covered employee means an employee of a covered employer who works at a covered workplace, except as provided in subparagraph (B).
Exclusion— The term covered employee does not include an employee who works in emergency operations that are directly involved in the protection of life or property, or the restoration of essential services and critical infrastructure.
Covered employer— The term covered employer means any employer that employs an employee at a covered workplace.
Covered workplace—
In general— The term covered workplace means a workplace at which employees are, or may reasonably be expected to be, exposed to adverse air.
Exclusions— The following shall not be considered a covered workplace:
An enclosed building or structure in which the air is filtered by a mechanical ventilation system such that an employee is not exposed to adverse air, if the employer ensures that windows, doors, bays, and other openings are kept closed, except when it is necessary to open doors to enter or exit.
An enclosed vehicle in which the air is filtered by a cabin air filter such that an individual inside such vehicle is not exposed to adverse air, if the employer ensures that windows, doors, and other openings are kept closed, except when it is necessary to open doors to enter or exit the vehicle.
A workplace that exposes individuals to adverse air for a period not to exceed 1 hour during a shift.
Employer— The term employer has the meaning given such term in section 3 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 652).