Wildfire smoke that shut down jobsites across the West dissipated this week, even as guidance on when to stop work due to hazardous air quality conditions remained ambiguous.
The clearer air came a week after numerous contractors stopped work on projects due to heavy smoke driving the Air Quality Index higher than 600, beyond the upper 500 limit on the EPA’s hazardous air quality chart.
The situation is made more dire because the poor air quality can exacerbate worker health risks from COVID-19. The Oregon Health Authority said last week that increased pollution has been associated with a higher risk of respiratory infections, which has serious implications during the pandemic.
At least 2,193 projects in California, Washington and Oregon worth more than $1.6 billion were in counties where the Federal Emergency Management Agency declared a disaster and were likely impacted by the smoke, according to data from Built Technologies, a platform that tracks construction financing.
While sites shut down voluntarily last week, contractors said doing so put them in an awkward position with their owner clients, because neither the Environmental Protection Agency nor the Occupational Safety and Health Administration has mandates on when outdoor work should cease due to hazardous air quality. The lack of guidance only exacerbates the problem for construction firms, said Michael Zisa, partner at construction law firm Peckar & Abramson.
“Contractors are not experts in air quality, safety standards or disease control,” Zisa said in an email. “Federal, state and local governments have this expertise — they have the technical knowledge and resources to create standards, measure pollutants, evaluate medical implications and importantly issue necessary orders, mandates and directives to protect the public at large as well as industries particularly impacted by the environmental issues such as the construction industry."
He compared the lack of guidance about wildfires to similar issues that contractors had with dealing with effects of the coronavirus outbreak.
"As we learned from the COVID-19 pandemic, the government’s failure to issue clear orders, directives and mandates creates uncertainty and confusion and places contractors in a very challenging situation," he said.
Zisa said contractors may have legal exposure if a worker were to become sick at work during unhealthy or hazardous air quality days.
“When confronted with ambiguous standards or requirements, contractors are left to determine on their own how to balance the need to protect their employees and other workers with the need to meet their obligations to the project owner, which can expose them to legal, regulatory and reputational problems," he said.
Talk with owners about the risks
But Greg Sizemore, vice president of health, safety, environment and workforce development at Associated Builders and Contractors, said that while the situation isn’t ideal, contractors should use their best judgment to protect themselves and their workers.
“It’s one thing to ask someone to set up a regulatory requirement that says X, Y or Z,” Sizemore said. “I say to you: Be careful what you ask for.”
Instead, he recommends that contractors talk with owners about the health impacts of working in such conditions and the potential liability that continuing work in those situations could bring. And just as with COVID-19, contractors need to do what is necessary to put their workers’ health first.
“I would suspect that if you have a candid conversation with the builders, they don't want to be liable for any of that,” Sizemore said. “What they need to do is envision their son, daughter, husband or wife being asked to perform the work that an employee of theirs is being asked to perform. I submit that if you connect yourself to it personally like that, you’re going to pump the brakes.”
