PORTLAND – A federal judge has dismissed a lawsuit challenging Oregon’s job site rules aimed at protecting workers from extreme heat and wildfire smoke.
U.S. Magistrate Judge Mark D. Clarke dismissed the lawsuit filed by Oregon Manufacturers and Commerce, Associated Oregon Loggers Inc. and the Oregon Forest Industries Council last week. The case was dismissed with prejudice and cannot be filed again.
Regulations adopted in May by the Oregon Occupational Safety and Health Division lay out steps employers must take once temperature or air quality reach a certain threshold. The heat rules went into effect June 15; the wildfire smoke rules went into effect July 1.
The business groups, which together represent more than 1,000 Oregon companies and 50 forestland owners, filed the suit on the day the heat rules went into effect, arguing that they were unconstitutional. They sought an injunction to prohibit the state from enforcing the new rules.
The groups alleged that several provisions in the new regulations were 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.
Lawyers for Oregon OSHA filed a motion to dismiss the suit in September, disputing the business groups’ claim that the rules were too vague and contending that the lawsuit should be dismissed based on sovereign immunity, which prevents state agencies from being sued in federal court without their consent.
“Common sense (and the experience of Oregonians who have lived through recent wildfire seasons) confirms that employers of reasonable intelligence have ample means to make a determination as to whether wildfire smoke is impacting air quality, often through their own observations and senses, as well as access to significant publicly available information regarding the location of wildfires and their zone of impact,” the lawyers argued.
The court agreed with the state agency, finding that Oregon OSHA did have sovereign immunity as a state agency and that the business groups failed to show that “the rules are vague in all circumstances.”
Oregon OSHA’s 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 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.
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.
Before adopting the permanent rules this year, Oregon rolled out temporary emergency rules to protect workers from extreme heat and wildfire smoke in 2021 after workers across the state were exposed to harsh working conditions during unprecedented heat in June 2021 and wildfires in September 2020.
At least two workers, farmworker Sebastian Francisco Perez and construction worker Dan Harris, died from heat-related illnesses after working through blistering heat in June 2021. They were among nearly 100 people across Oregon who died during the June 2021 heat wave as temperatures reached 116 in Portland and even higher elsewhere, shattering all-time high temperature records across the state.
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